GIFFORD MOTOR CAR COMPANY V. DAVIS Replevin-Bailment Leases-Set-off. 1. The lessee in replevin proceedings under a bailment lease cannot pay less than the contract price and retain the property even though the thing leased was not of the kind and quality represented by plaintiff and even though certain equipment which lessor agreed to furnish was not delivered to lessee, in violation of the agreement. 2. Replevin is in form an action ex delicto and in such action the defendant cannot avail himself of a defense in the nature of a set-off, even though he give a property bond and retain the property. Rule for judgment n. o. v., No. 430 May Term, 1919. C. P. Erie County. Gunnison, Fish, Gifford & Chapin for Plaintiff. Brooks, English & Quinn for Defendant. HIRT, J., August 4, 1922. On May 17, 1918, plaintiff, Gifford Motor Car Company, entered into a bailment lease with defendant and in accordance with the terms thereof delivered to him a "Premier Beaver-Brown Foursome automobile, No. 2563." Defendant according to the terms of the lease agreed to pay "for the use of said automobile and equipment" $2,500.00 as follows: $665.00 on the execution of the lease, $835.00 by the delivery of a Reo automobile by defendant to plaintiff, and the balance of $1,000.00 in instalments of $250.00 monthly. Notes were given by defendant to plaintiff as additional security for the payment of the $1,000.00 remaining unpaid on the delivery of the car. By an undated endorsement, all of plaintiff's rights under the lease were assigned to Commercial Trust Company, use-plaintiff. Defendant paid all of the rentals except two of the notes and on his default use-plaintiff instituted this action of replevin. Defendant gave bond and retained the property. At the time of the trial $500.00, together with interest, was due use-plaintiff from defendant to complete the payments in accordance with the terms of the lease. At the trial defendant offered evidence to the effect that Gifford Motor Car Company v. Davis before entering into the contract, a catalogue had been given him by plaintiff describing the car he was to receive, specifying certain equipment, and that the car delivered to him was not equipped according to the specifications in the catalogue. Defendant also testified that he purchased a 1918 model and that the car was so represented to him, but sometime after delivery he discovered that the car was in fact a 1917 model. He says that the specification of equipment contained in the catalogue and the representations of plaintiff, induced him to sign the lease and that the designation of the car leased to him as a 1918 model with equipment as specified in the catalogue, was not set forth in the written lease by plaintiff's fraud or mistake. Against the balance of the rent due defendant sought to set off the value of the additional equipment which plaintiff should have furnished to comply with the specifications of the catalogue, and also the difference in value between a 1917 model, which he says he did receive and a 1918 model, which he claims should have been delivered to him. We submitted to the jury the parolevidence offered by the defendant for the purpose of varying the terms of the written instrument, and also the evidence as to the value of the missing equipment, and evidence of the difference in value between a 1918 and 1917 model. This testimony we allowed on the theory that it disclosed a failure of consideration which released defendant pro tanto. The jury found for the defendant, whereupon plaintiff moved for a new trial and for judgment n. o. v. and the rules granted thereon are now before the Court. We are convinced that at the trial we prejudiced plaintiff's case by an expression of opinion as to the evils of the practice of selling automobiles by means of bailment contracts, and for this reason plaintiff is entitled to a new trial at least. Whether or not, under the law, we must go further and enter judgment n. o. v. is the sole remaining question. Whether the testimony of defendant meets the standard of suffciency required by law to vary the terms of a written instrument is questionable, but for the purposes of this rule Gifford Motor Car Company v. Davis we will assume that the evidence is sufficient and that the contract has been varied by this parol evidence and that under the contract as modified, plaintiff was required to deliver a 1918 model with the equipment specified in the catalogue. We will also assume that in fact a 1917 car was delivered to defendant lacking the items of equipment in question. In this situation we are convinced that under the decisions there was not such failure of consideration as will entitle defendant to pay less than the contract called for and that what defendant attempted was to set off his damages against the amount of the rentals stipulated in the lease. This cannot be done for the law is well settled that set off cannot be pleaded and allowed in replevin. Nat. Cash Reg. Co., vs. Cochran, 22 Pa. Super. 582; C. H. Hardy A. Co. vs. Posey, 50 Pa. Super. 399. "Replevin is in form an action ex delicto and in such action the defendant cannot avail himself of a defence in the nature of a set off for the reasons that the demand is uncertain in its nature and the fact that plaintiff is indebted to the defendant is no justification for a tortious act." General Motors Truck Co. vs. Phila. Paving Co., 248 Pa. 499. In Michael vs. Stuber, 73 Pa. Super. 390, an attempt was made to show that plaintiff had failed to comply with his agreement by not furnishing certain parts of the automobile not attached to or accompanying it at the time delivered (facts parallel with the contention of defendant in this case as to the missing equipment). In this situation it was there held "The care either belonged to the plaintiff or to the defendant; the proceeding was designed to determine which was entitled to it. The defendant having given a property bond and kept the machine could not thereby change the issue. The condition of the property was therefore not involved. If plaintiff made promises which he had not kept a different procedure would be necessary to enforce that obligation." The case of Hall's Safe Co. vs. Walenk, 42 Pa. Super. 576, is authority for the conclusion that defendant is not entitled to pay less than the contract price and retain the property, even though the thing leased was not of the kind Gifford Motor Car Company v. Davis and quality represented by plaintiff. "If the safe received by the defendant did not correspond with the description as to size and quality given by plaintiff the defendant was not bound to receive it or retain it." Having retained it he was bound to pay the amount stipulated in the contract. To the same effect is the as yet unreported case of Commercial Car Co. vs. Murphy and Sons. In this case according to the reported syllabus the Supreme Court by Mr. Justice Simpson held "A purchaser of a motor-truck on a bailment lease, who claims the truck is not as represented, and that he was induced to make the contract by false representations, must rescind the contract in order to assert this contention. He cannot pay less than the contract called for and keep the truck, as the title is still in the seller, who can, therefore, recover it in an action of replevin." For the reasons above indicated, judgment must be entered against the defendant n. o. v., for the value of the automobile at the time of issuing the writ together with damages for detention. At the time of trial we understood that $203.12 had been paid plaintiff by defendant, but the record does not disclose that this was the case, so that what plaintiff is entitled to is the full value without deduction. The uncontradicted testimony shows that the automobile when replevied was worth $1,000.00. Plaintiff, however, disclaimed any right to a verdict in excess of $500.00 with interest from May 17, 1918. And now, August 4, 1922, the rule granted October 15, 1921, on use-plaintiff's petition for judgment is made absolute and judgment is entered for use-plaintiff and against the defendant non obstante veredicto in the sum of $625.00. MAYHEW V. MEEKER Justices of Peace-Action against-Notice of-Endorsement of name and address of attorney. A notice which does not contain an indorsement of the name and address of plaintiff's attorney and which does not contain with precision a statement of the nature and circumstances of the injury to be redressed, is insufficient under the act of March 21, 1772. 1 Sm. 364. A sufficient notice in compliance with the above act of assembly is necessary as a prerequisite to an action against a justice of the peace. Statutory Demurrer, No. 211 May Term, 1922. C. P. Erie County. J. R. Craig & W. R. Seabrook for Plaintiff. Milloy & Gilson for Defendant. HIRT, J., August 8, 1922. This case is before the Court on statutory demurrer. It is an action in trespass against a justice of the peace for malicious prosecution, false arrest and false imprisonment. The right of action in this case is limited by the Act of March 21, 1772, 1 Sm. 364 (2 Purdon, 2162), and that act provides "That no writ shall be sued out against nor any copy of any process, at the suit of a subject, shall be served on any justice of the peace, for anything done by him in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the party, or his attorney or agent, who intends to sue or cause the same to be sued or served, at least 30 days before the sueing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action, which the said party hath or claimeth to have against such justice of the peace; on the back of which |