NEUMAN v. WENGER, 306 Pa. 272 (1932)

159 A. 440

Neuman, Appellant, v. Wenger.

Supreme Court of Pennsylvania.January 15, 1932.
February 3, 1932.

Judgment — Want of sufficient affidavit of defense — Disputed facts — Bailment — Proper care.

1. Where the facts are disputed judgment for want of sufficient affidavit of defense will not be entered. [274]

Page 273

2. Such rule applied in an action for the value of a fur coat left for storage and never returned, where the affidavit of defense avers that the coat was taken out of storage at plaintiff’s request for repairs, without continuance of insurance, and that its value was less than that claimed in the statement, naming a less sum. [274]

3. In such case the question arises as to whether or not defendant exercised proper care in the safe-keeping of the coat. [274]

Argued January 15, 1932.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.

Appeal, No. 133, Jan. T., 1932, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1931, No. 6379, discharging rule for judgment for want of sufficient affidavit of defense, in case of Helen Neuman v. Morris Wenger, trading as House of Wenger. Affirmed.

Assumpsit for value of fur coat left for storage and not delivered to plaintiff. Before McDEVITT, P. J.

The opinion of the Supreme Court states the facts.

Rule discharged. Plaintiff appealed.

Error assigned was order, quoting record.

Hiram B. Calkins, with him Horace Michener Schell, for appellant.

Yale L. Schekter, for appellee, was not heard.

PER CURIAM, February 3, 1932:

Plaintiff sued to recover the value of a fur coat left with defendant for storage, and appeals from refusal of the court below to enter judgment for want of a sufficient affidavit of defense.

The statement of claim avers that on May 19, 1930, the coat was left, together with other articles of fur wearing apparel, at defendant’s place of business for safe-keeping in cold storage, under the terms of a written contract in which he agreed, for a consideration, to

Page 274

keep the coat free from moths and insured against fire or theft until November 15, 1930, the value being listed at $4,000. Plaintiff avers that on or about November 1, 1930, she called for the coat and was advised that, after thorough search, it could not be found; and, upon further demand the article in question not being returned and defendant refusing to reimburse her in the sum of $4,000, its listed value in the storage contract, this action was brought.

The affidavit of defense admits receipt of the garment for storage on the terms named by plaintiff, but denies she called for it on November 1st as averred, and further sets forth the coat was called for on or about November 18, 1930, at which time it was taken out of cold storage and left with defendant, by plaintiff, for repairs, without continuance of insurance. Under the latter averment, if established by evidence, the question arises as to whether or not defendant exercised proper care in the safe-keeping of the coat: Moon v. First Nat. Bank of Benson, 287 Pa. 398. Defendant also contends the actual value of the coat did not exceed $3,000, and it could be replaced for that sum.

Facts being in dispute as above indicated, the court below properly held plaintiff was not entitled to summary judgment and discharged her rule: Windisch v. First Camden Nat. Bank
Trust Co., 306 Pa. 193, and cases there cited.

The order of the court below is affirmed.