Page:Federal Reporter, 1st Series, Volume 5.djvu/785

 HAVEMETKB V. WBIGHT. 773 �Havemeibb V. Wright.* �{Olreuit Court, B. D. Pervnsylvania. January 24, 1881.) �1 Bbverable Oohtbacov— TBasTOBB op Part Per«v)rmanck— Rbptsal �TO ACCEPT— AlT-IDAVIT OF DBFENOB. �A. contracted to deliver to B. 700 tons of rails, to be shipped from etit-ope, in Pebruàry, in one or liiore vesaels, eaeh cargo to be paidfor on deliverf. A. shipped one cargo of 342 tons, which arrived in May, but B..rgfused to accept it. In a suit brought by A. against him, B. aled an affldavit.of defence setting forth that A. hadnot shipped the residus at the time he tendered the flrst cargo, and had never intended to ship them. Held, a sufflcient defence. ' �Eule for jadgment for want of a sufficient affidavit of de- fence. �This was an action of assumpsit by Havemeyer & Vigelius against Peter Wright & Sons. Plaintifs filed a copy of the folio wing contract : �"7Ô Wall Stbbet, �"New Yobk, Jan. 20th, 1880. "Sold for account of Messrs. Havemeyer à Vigelins ►25 seven hundred (700) tons old T iron rails, (5 per ceût., O more or less, seller's option,) for shipment from Europe iz; to PhilàpdelpMa in February, 1880, and for delivery, ex ^ vessel or vessela, on wharf in poirt of Philai^elphia ; priee m forty-three and one-half 'dollar^ ($43,50) |ier ton of 2, 240 .^ . 1 pounds r U,., S. custom JiôusB tveights to decide quantity. Terme; Spot cash, qn presentation tjflinvoioe, with U. ^ S. certificate of weight fq^ each lot. Name of vessel to Ph be giveu' to buyera as soon as known to sellers. § ■ "Geo. A. BoYiiTON,, �Û "Brokfer. �"Per Geo. H. Wkight. "Aceepted. �"Peteb Wright & Sons. Per M." �With the above was filed a copy of invoice presented to defendants June 7, 1880, for 8e2 700-2240 tons at $43,50,— $14,890.59, — with United States certificate of weight; im- ported in ship Livingston, which arrived May 8, 1880. �•Reported by Frank P. Prichard, Esq., of the Philadelphia bar. ����