WEBSTER MFG. CO. v. TRUSTEES OF UNIVERSITY OF PENNSYLVANIA

WEBSTER MFG. CO. v. TRUSTEES OF UNIVERSITY OF PENNSYLVANIA. (Circuit Court, D. Pennsylvania. March 27, 1908.) No. 59. 1. Pleading — Affidavit of Defense. An affidavit of defense in an action on a contract made by correspondence held sufficient to prevent a summary judgment. On Motion for Judgment for Want of Sufficient Affidavit of Defense. Vale & Mann, for plaintiff. Francis V. Lloyd and H. Gordon McCouch, for defendants. [MAJORITY — J. B. McPHERSON, District Judge.] J. B. McPHERSON, District Judge. I think the affidavit of defense in this case is sufficient to prevent a summary judgment. It may not be improper to add, for the information of the parties, that in my opinion the whole series of letters having to do with the proposed installation of machinery must be considered before the court can put together satisfactorily all the details of the contract. As it seems to me, this is a necessary conclusion from the plaintiff’s own letter of July 5th, in which certain items specified therein are spoken of as “changes and additions”; for this, I think, implies that something had already been agreed to, and compels a reference to the whole of the preceding correspondence in order to discover what was changed or addeo on July 5th. No doubt there had been propositions and counter propositions between the parties, but a review of all the communications that passed makes it plain to my mind that the contract does not rest altogether upon the plaintiff’s letter of July 5th and the defendants’ reply of July 8th. Indeed, it is impossible fully to understand the plaintiff’s letter without reading all that went before it. The rule for judgment is discharged.