Sales — Affidavit of defense — Sufficiency — Statute or Limitations.
In an action of assumpsit for goods sold and delivered, it appeared that the materials were sold in Germany for delivery in London in 1914. The World War having intervened the action for the failure to pay was instituted on December 30, 1924. It developed that, at the declaration of war, the Statute of Limitations had run against the claims for two years eleven months and six days, and for two years, five months and six days respectively, and that at the termination of hostilities the plaintiff had three years and twenty-four days in which to bring suit on the older claim and a further period of six months on the second claim. The one claim was well within the required time, and the bar to the other was tolled by the payment received through the clearing house in 1924.
Held: That the World War suspended the running of the Statute of Limitations, and that it did not commence again until the execution of the Treaty of Versailles, and that an action brought within six years from the execution of the contract, excluding the period of the World War, was in time.
Argued November 9, 1926.
PER CURIAM, November 17, 1926.
This is an action of assumpsit to recover the price of goods sold and delivered, with interest on the amount thereof from the time payment became due. The court below, in disposing of a rule for judgment for want of a sufficient affidavit of defense, entered judgment against the defendants for the amount of the price which they admitted they had agreed to pay for the goods, but held that the right of the plaintiff to recover interest on said amount did not so clearly appear, from the statement of claim filed by the plaintiff and the affidavit of defense, as to warrant the entry of a summary judgment for the amount of said interest. Judgment was entered in favor of the plaintiff for the amount of the price of the goods, with leave to proceed to a jury trial upon his claim for interest on said amount. We have these two appeals from this action of the court, the defendants averring that the court erred in entering judgment against them for the amount of the price of the goods, and the plaintiff averring that the court erred in refusing to enter judgment for the amount of interest on his claim. The opinion of Judge AUDENRIED in disposing of the rule, which will appear in the report of this case, fully sustains the conclusion at which he arrived, and for the reasons in that opinion stated the assignments of error, in the respective appeals, are overruled.
In the appeal by the defendants, No. 227, October Term, 1926, the judgment is affirmed. The appeal by the plaintiff, No. 260, October Term, 1926, is dismissed, without prejudice, c.