(108 A.)

KEPHART, J. This action was brought to | per year; he was paid $1,800 and discharged recover for automobile equipment sold to the shortly after employment. The affidavit does defendant. The affidavit of defense admits not show in what manner the salary was to delivery, and the correctness of the prices be paid, whether monthly, quarterly, or ancharged, with some minor exceptions, which, nually; nor that Hudson had been wrongdeducted, left a balance of $7,870.60. As a fully discharged, or tendered performance defense to this balance, and for a certificate, after discharge. Both of these are essential a number of counterclaims in the sum of to sustain a claim for wrongful discharge. $168,459 were interposed. The court below, McCahan's Est. (No. 1) 221 Pa. 186, 187, 70 on motion for judgment for want of a suffi- Atl. 711. cient affidavit, held they were not well pleaded and directed judgment to be entered, from which defendant appeals.

[6, 7] Another claim was assigned to appellant by John Gerosa. It arose out of an agreement by the appellee to transfer all business assets to a corporation to be thereafter formed. Gerosa performed certain services under it, for which he was to receive 25 per cent. of the total issue of capital stock. The plaintiff failed to comply with the agreement. Gerosa now claims the value of the stock as damages. The affidavit does not say when the services were performed, nor when the corporation was to be formed, nor that a reasonable time had elapsed in which to organize, nor that appellee had been notified to proceed to perfect his part of the agreement. The amount of capital was not set forth in the agreement, but was expressly left to the discretion of the plaintiff. No claim would arise until there had been some default or breach. The supplemental affidavit did not cure these defects. The subsequent agreement referred to is not attached as it should be, if in writing; and, if oral, it should be specifically averred. What is here said of the Gerosa claim applies to that of his agent, Smith, with this in addition: There are no facts alleged showing a consideration passing between Smith and the appellee sufficient to support any claim or to form the basis of a cause of action. Both claims are insufficiently set forth in the affidavit. do not pass on the merits of the counterclaims. They are not available in this case, as a defense, to bar a summary judgment, because they are not well pleaded.

[1, 2] A counterclaim should be set forth with as much precision and exactness as is required in the statement of a cause of action upon which proceedings are instituted. Three of the counterclaims advanced ask for damages resulting from the breach of oral agreements to furnish certain automobile units. These agreements, containing similar terms, were with the defendants, the Hudford Company and the Hudford Sales Company; each claim is set out separately, but they are all subject to the same objection. The units called for in the contracts were commercial bodies to be fitted on the chassis of pleasure cars. There is nothing specifying the time within which the units were to be furnished, nor is there an averment that the appellee knew that the units were for immediate use, or that any sales of the units had been made, or of any contracts in existence relating to the units; nor is it pretended that any such agreements existed. The statement that the defendant would have been able to sell the units is merely an expression of their hope and expectation. There is nothing averred which would require the appellee to furnish the units before the alleged default; the contracts did not expire until eight months after that time. [3, 4] As a matter of fact, the defendant neglected to pay for all the units it had received, and the appellee was justified in refusing further shipments, as the appellant was clearly in default, and annulment of the contract could have been made on that account. Even if the contracts were well pleaded, the averment as to the damages suffered is incomplete; there are no facts set forth from which the loss of anticipated profits (Superior Court of Delaware. could be reasonably ascertained, even if they could be recovered. Without going into further detail, the affidavit does not set forth a single claim under any of the contracts that could be sustained. The assignments of the Hudford Sales Corporation of New York and the Hudford Company of Chicago were made to the Pennsylvania company shortly before suit was brought and after a demand for settlement had been made.

[5] Another assigned claim was an unpaid salary account, amounting to $8,200, of William F. Hudson, employed by the appellee as a purchasing agent at a salary of $10,000

We

The judgment of the court below is affirmed.

In re FRANCIS.

May 19, 1919.)

(7 Boyce, 388)

New Castle.

CORPORATIONS 109-ISSUANCE OF NEW

STOCK CERTIFICATE TO REPLACE ONE LOST ON
FILING BOND.

On an application by a stockholder to require a corporation to issue a new certificate of stock in lieu of a lost certificate, held, that the corporation should issue a new certificate on applicant's filing a bond conditioned to indemnify any person who shall hereafter appear to be the lawful owner of the stock.

In the matter of the application of Nathaniel L. Francis for an order requiring the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Dated, April 5, 1919. Nathaniel L. Francis was sworn as a witness and testified to the facts contained in the petition.

Whereupon the court made the following

And now, to wit this 19th day of May, A. D. 1919, the petition of Nathaniel L. FranJohn Pearce Cann, of Wilmington, for de- cis for an order requiring Elliott-Fisher Comfendant.

On hearing, order made for issuance of certificate of stock in place of one alleged to new certificate.

(7 Boyce, 390)

(108 A.)

WARRINGTON v. REESE.

when he saw the tomatoes in the car at Harrington, he called the plaintiff over the phone and informed him that he could not receive

(Superior Court of Delaware. Sussex. April the tomatoes on account of their "poor con

17, 1919.)

1. CONTRACTS 1 - WHAT CONSTITUTES A CONTRACT.

A "contract" is an accepted offer for a sufficient consideration to do a particular thing.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Contract.]

dition."

He claims that, at that time, the plaintiff told him to go ahead and use as many as he could, and he, the plaintiff, would make it all right. Pursuant thereto, he used 306 baskets of the tomatoes and could not use the remainder. The defendant admits that he owes the plaintiff for the tomatoes he re

2. SALES 273(3)-IMPLIED WARRANTY OF ceived from the plaintiff and used, and is

FITNESS.

The seller of tomatoes being informed that they were to be used for canning, there is an implied warranty of their reasonable fitness for that purpose.

Action by Frederick T. Warrington against Evin C. Reese, to recover price of tomatoes sold. Verdict for plaintiff.

At the beginning of the trial, the defendant paid into court $269.45, the amount admitted to be due in the case, with interest; also the costs of the case, $38.14.

ready and willing to pay him for the same, at 80 cents per basket.

The plaintiff denies that he agreed with the defendant that the tomatoes were to be of good stock, or that the car in which they were shipped was to be shelved, or that the defendant told him the tomatoes were to be used on the following Monday. He also denies that he told the defendant to use as many of the tomatoes as were fit for use, and that he would make it right with the defendant. He contends that at the time the contract for the sale of the tomatoes was made, he

The facts appear in the charge of the court. told the defendant that "the tomatoes were RICE and HEISEL, JJ., sitting.

Howard J. Cooke and James M. Tunnell, both of Georgetown, for plaintiff.

such as he might expect at this time of the season."

It is necessary for you to determine in this case the terms of the contract between the

William M. Hope, of Dover, and Robert G. plaintiff and the defendant for the sale of Houston, of Georgetown, for defendant.

RICE, J. (charging the jury). In this action, Frederick T. Warrington, the plaintiff, seeks to recover from Evin C. Reese, the defendant, the purchase price of a carload of tomatoes which he sold to the defendant.

The plaintiff claims that on Friday, September 21, 1917, he sold the defendant a carload of tomatoes, containing 618 baskets, at an agreed price of 80 cents per basket, the tomatoes to be delivered to the defendant on board the car at Georgtown, consigned to the defendant at Harrington; that the tomatoes were delivered by him to the defendant, but the defendant refuses to pay for the same at the agreed price.

the tomatoes in question. Were the terms of the contract as claimed by the plaintiff or were they as claimed by the defendant?

[1] A contract has been defined to be "an agreement between two or more persons, upon sufficient consideration, to do, or not to do a particular thing." In other words, a contract is where one party, for a sufficient consideration, offers to do or not to do a particular thing, and there must be an acceptance by the other party of that offer, and this offer and acceptance must be equally binding upon both parties to the agreement, and must be to do or not to do a particular thing.

[2] If the contract with respect to the sale of the tomatoes was as claimed by the plaintiff, nevertheless, if the plaintiff was informed by the defendant that the tomatoes were to be used by the defendant for canning purposes, there was an implied warranty on the part of the plaintiff that they would be reasonably fit for the purpose for which they were sold.

The defendant does not deny that he contracted with the plaintiff for a carload of tomatoes, or that the plaintiff shipped him the same; but he claims that under the terms of the agreement the tomatoes were to be "of a good stock, in good condition for canning purposes"; that the car in which If you should find from the evidence that they were shipped was "to be shelved." He He the plaintiff delivered to the defendant the also claims he advised the plaintiff, at the carload of tomatoes, of the quality and in time the tomatoes were contracted for, that the condition agreed upon, and the defendhe wanted the tomatoes for use on the fol- ant received the same, the plaintiff would be lowing Monday. It is claimed by the defend- entitled to a recovery in this action for the ant that the tomatoes delivered to him by the tomatoes sold, and at the price agreed upon. plaintiff were in a very bad condition, that If, however, you should find from the evithey were small, and many green, and about dence that the tomatoes delivered by the half of the tomatoes received from the plain- | plaintiff were not of the quality, in the contiff were unfit for canning purposes; that dition, or loaded in the manner agreed upon,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
108 A.-3

then the defendant had the right to refuse | 2. RAILROADS 344(1)
to receive the same, and for such refusal
he could not be held liable for the purchase
price of the tomatoes.

COMPLAINT IN
CROSSING ACCIDENT ALLEGING OMISSION OF
MEANS OF WARNING SUFFICIENT.

Counts of declaration for crossing accident, which, after alleging the dangerous character of the crossing, averred that because thereof it was defendant's duty to maintain a watchman warning, but it negligently omitted to do eior safety gates, or other sufficient means of ther, held good.

tor, against the Director-General of RailAction by George W. Padley, administraroads. On general demurrer to the first three counts of declaration. Demurrer overruled. RICE and HEISEL, JJ., sitting.

If you should find that the tomatoes were not of the quality, or in the condition agreed upon between the parties, and you should further find that by reason thereof the defendant refused to receive the same, and so informed the plaintiff, and that a new agreement was thereupon entered into between the plaintiff and the defendant, to the effect that the defendant was to receive the tomatoes in their present condition and to use only so many as he found in a condition fit for use, then and in that event, the defendant would only be liable for the tomatoes accepted and used by him, or, in other words, his liability in such event would be fixed by the terms of the new contract, if there was a new con- defendant. tract, with respect to the sale of the tomatoes, entered into between the parties subsequent to the making of the original contract.

The defendant admits that he owes the plaintiff for 306 baskets of tomatoes at the price of 80 cents per basket, with interest from the 21st day of September, 1917, amounting in the aggregate to the sum of $269.45, and it is your duty to find a verdict in favor of the plaintiff for at least that amount, and, if you should believe from the evidence that by reason of the sale of the tomatoes in question the defendant is further indebted to the plaintiff, then your verdict should be for the plaintiff in the total amount of indebtedness resulting from the sale of the tomatoes in question.

If you should believe from the evidence that the defendant is not indebted to the plaintiff in any amount, in addition to the amount admitted by the defendant to be due from him to the plaintiff, then your verdict should be in favor of the plaintiff for the sum of $269.45 only.

1. RAILROADS 344(1) COMPLAINT IN CROSSING ACCIDENT ALLEGING ABSENCE OF

WATCHMAN SUFFICIENT.

Count of declaration for accident at railroad crossing, alleging that defendant, to the knowledge of deceased, had been accustomed to maintain a watchman there to give warning of

Robert H. Richards, of Wilmington, for. plaintiff.

Herbert H. Ward, Jr., of Wilmington, for

RICE, J., delivering the opinion of the court:

[1] The first count, after alleging the dangerous character of the crossing in question, by reason of the angle of intersection of the railroad tracks and the public highway, and by reason of obstructions which prevent a clear view, in both directions, of said track, by persons passing along said public highway, in substance alleges that the defendant, to the knowledge of said Harold F. Padley, deceased, had been accustomed theretofore to maintain a watchman thereat for the purpose of warning persons about to cross said tracks, at said crossing, of the approach of defendant's locomotives and trains, but at the time of the accident the defendant had negligently and carelessly suffered and permitted the said watchman to leave his post of duty, and had thereby left said crossing without any watchman or other means of warning persons, about to cross said tracks, of the approach of locomotives and trains.

The defendant contends that the count is not good because the plaintiff has not averred it to be the custom of the defendant to. maintain a watchman at the crossing, at the time of the day the collision occurred.

We are of the opinion that the count is good, because the plaintiff has averred that "at the time of the commission of the grievances hereinafter mentioned, the defendant had negligently and carelessly suffered and permitted the said watchman to leave his said post of duty," and we think that charges the defendant with negligence in not maintaining the watchman according to their custom, at the time of the accident, and to maintain his action on this count of the declaration, it would be necessary for the plaintiff to prove the defendant's custom to main

approaching trains, but at time of commission of grievances had negligently suffered watch-tain the watchman between hours embracing man to leave his post, was not bad for not al- the time of the day the accident occurred, leging custom to maintain watchman at hour of this being a matter of proof rather than a accident; this being matter of proof. matter of pleading.

(108 A.)

[2] The second count, after alleging the dangerous character of the crossing, avers that

"By reason of the dangerous character of said crossing, it was then and there the duty of the said defendant to maintain a watchman or other sufficient means of warning at said crossing, for the purpose of warning persons about to cross said tracks at said crossing, of the approach of the defendant's locomotives and trains, but at the time of the commission of the grievances hereinafter mentioned the defendant had negligently and carelessly omitted to have and maintain at said crossing such a watchman or other means of warning as afore