195; Moorehead v. Bank, 3 W. &. S., 550; Bank v. Moorehead, 5 W. & S., 542; Dickinson v. Church, 1 W. & S., 462. But a jury cannot be permitted to speculate; there must be sufficient evidence of intention to raise the question: Bank v. Moorehead, supra. The burden of proof rested upon the terre tenant. The only evidence presented by him is the check and a loose leaf ledger sheet showing Butterweck's account. Nor did he offer any other evidence except a calculation of the amount by which he claimed his lien would be reduced by a ratable distribution. This we properly rejected: Anderson v. Snyder, 14 Pa. Super. Ct., 424. Not having proved or offered to prove sufficient to present a question for the jury he cannot complain because we refused to submit the question. Upon the whole case our conclusion is: That there was an appropriation of the payment to the account, but that in the absence of evidence showing either the nature and character of the items of the account or the intention of the debtor at the time of the payment there is not suf ficient evidence to submit to the jury upon the question as to what the terms of the appropriation were.

Now, July 18, 1922, motions for new trial and for judgment n. o. v. overruled and discharged.

U. S. GYPSUN CO. v. BETHLEHEM FABRICATORS. Practice, C. P.-Affidavit of Defense-Statement of ClaimSufficiency of Statement-Counter-Claim-Sufficiency of CounterClaim-Pleading.

Where both parties had contracts at a specific work, and because of defects a certain contract was entered into between plaintiff and defendant, defendant alleging, however, that the claim of plaintiff did not arise out of said contract and that no work was done thereon, an issue of fact is created.

When the court finds that a statement of claim and the affidavit of defense create an issue of fact. it will discharge a rule for judgment for want of a sufficient affidavit of defense.

Where plaintiff attacks the form and substance of a counter-claim of defendant, when said counter-claim is practically identical in form with the plaintiff's statement, he is hardly in a position to question the former. The court, however, found both sufficient in form and substance to sustain a judgment.

In the Court of Common Pleas of Lehigh County. No. 114 January Term, 1922. United States Gypsun

Company v. Bethlehem Fabricators. Rule for judgment for want of a sufficient affidavit of defense, and plaintiff's reply raising questions of law to defendant's counterclaim. Rule discharged and Plaintiff's Reply overruled.

George R. Booth, for Plaintiff.

Robert S. Taylor, for Defendant.

Reno, J., July 18, 1922. We are considering this case upon plaintiff's (1) rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense and (2) statutory demurrer (i. e. a reply raising questions of law for the decision of the court) to defendant's counter-claim.

It appears that plaintiff and defendant were subcontractors of Strang and Mitchell, who had a contract with the United States Government for the erection of a hangar. Defendant erected the structural steel and plaintiff constructed the roof. After both parties had performed what they conceived to be their obligations under their respective contracts defects were discovered in the work and, as a result of certain negotiaion between them and representatives of the general contractor and the government, steps were taken to correct the defects. The plaintiff alleges that at the request of defendant and by virtue of an oral contract plaintiff supplied labor and material "for the purpose of finishing, patching and correcting the sagging and uneven surface of the hangar caused by the omission of certain iron parts or defects in the construction of said iron work contracted for by the defendant." The defendant does not deny that plaintiff furnished certain labor and materials, but alleges that such labor and materials were furnished by plaintiff for the purpose of correcting defects which had been caused by the manner in which plaintiff had constructed the roof over and upon the structural steel erected by the defendant. Neither does the defendant deny that it ordered plaintiff to do some work but it alleges that the work thus ordered by defendant was not that work for which plaintiff is now suing and further alleges that that work which defendant ordered was never performed by plaintiff. This, of course, creates an issue of fact to be determined by a jury, namely: Was there a contract be

tween the parties and, if so, what was that contract and was the contract so found to have been entered into performed by the plaintiff? Codding v. Wood, 112 Pa. 371; Erie Forge v. Pennsylvania Iron Works, 22 Pa. Super. Ct., 550. Having arrived at this conclusion it is unnecessary to examine plaintiff's further contentions.

The plaintiff's statutory demurrer to defendant's counter claim raises the question of the sufficiency of the allegations therein set forth. By the counter claim defendant seeks to recover from plaintiff the value of labor and materials supplied by defendant to plaintiff for the purpose of removing Gypsun from the structural steel dropped during the pouring of the gypsun slab by plaintiff, which labor and material, it is alleged, were supplied at the oral request of an agent of plaintiff company. The form of the counter claim is criticised by plaintiff but we rote that the form of defendant's counter claim and that of plaintiff's statement are practically identical. Indeed, we suspect that the pleader of the counter claim used plaintiff's statement as his guide. It follows that if the counter claim is insufficient in form to support a judg ment, the plaintiff's statement is likewise insufficient and being insufficient would not support a judgment for want of a sufficient affidavit of defense. Parry v. Lansford National Bank, 270 Pa. 556. When plaintiff asks us to adjudicate his opponent's pleadings defective he should be very certain that his own will pass careful inspection. However, a careful examination of both plaintiff's statement and defendant's counter claim convinces us of their sufficiency in form and substance to sustain verdict and judgment.

Now, July 18, 1922, rule for judgment for want of a sufficient affidavit of defense discharged and the questions of law raised by plaintiff's reply to defendant's counter claim are overruled; plaintiff may file reply to the facts of defendant's counter claim within fifteen days after service upon it of a copy of this order.

Jury.

GOMERY v. CENTRAL R. R. OF N. J. Negligence-Oral Testimony-Court and Jury-Case for

In an action for damages caused by negligence, the Court cannot direct a verdict as to amount, even though the defendant has no sufficient defense, where the case rests upon oral testimony. The credibility of the witnesses, even when uncontradicted, is for the jury.

In the Court of Common Pleas of Lehigh County. No. 122 Jan. Term, 1920. A. D. Gomery, trading as Gomery Brothers, v. Central Railroad of New Jersey. Rules for new trial and for judgment n. o. v. New trial granted.

Butz & Rupp, for Plaintiff.

Aubrey, Steckel & Senger, for Defendant.

Reno, J., July 18, 1922. Plaintiff sued to recover damages caused by alleged negligence of defendant in delaying shipment of fruit from New York to Allentown. Defendant alleged that the loss, if any, was caused by the act of God. At the conclusion of defendant's case we instructed the jury to find a verdict for the plaintiff for the full amount of his claim. Clearly this was error. In our judgment defendant had not shown sufficient facts to take its defense to the jury but that did not authorize us to instruct the jury to find a verdict for plaintiff for the full amount of his claim. The jury is the tribunal which must pass upon the amount of damages to be awarded. Whenever plaintiff's case rests upon oral testimony, (and in this case all of the testimony relating to the amount of damages was oral), the question of the credibility of the witnesses, even when they are uncontradicted, is for the jury: McGlinn Distilling Company v. Dervin, 260 Pa. 417; Trexler v. Africa, 33 Pa. Superior Court Report, 395.

Now, July 18, 1922, rule for new trial absolute and new trial granted. Rule for judgment n. o. v. discharged.

BENCO v. SCHUSTZER.

Real Estate Agreement of Sale-Pleading-Plaintiff's Statement-Sufficiency.

On agreement of sale of real estate, unless otherwise therein provided, the vendee is entitled to the return of the purchase price., if and only if the vendor has failed to perform some contractual duty resting on him.

Defendant signed an informal agreement of sale; one day thereafter plaintiff tendered to him a formal agreement, which defendant refused to sign, whereupon, plaintiff having demanded return of down money, and it being refused, suit followed. Plaintiff did not aver that he tendered balance of purchase money, nor that defendant did or did not tender a deed.

Held, that plaintiff's statement of claim was insufficient in law.

In the Court of Common Pleas of Lehigh County. No. 193 April Term, 1922. Wendel Benco v. Theresa Schustzer. Assumpsit. Affidavit of Defense raising Questions of Law. Sustained. Leave to Amend.

Dallas Dillinger, for Plaintiff.

James F. Henninger, for Defendant.

Reno, J., July 18, 1922. Plaintiff alleges that on November 25, 1921, he paid $100 to defendant as part of purchase price of certain real estate and received from defendant a written receipt in the following form:

"Wendel. 517 Front Street, he bought $3800; he gave $100. THERESA SCHUSTZER." and that on November 26, 1921, he tendered to defendant an agreement of purchase and sale in the usual form which defendant refused to sign, whereupon he demanded the return of the $100, which being refused, he now sues for.

Defendant files an affidavit of defense alleging that plaintiff's statement is insufficient in law to support a recovery and urges us to hold that defendant, not being in default of any duty resting upon her, is not obliged to return the consideration.

In the disposition of this case we are confined to the averments of the statement. That statement avers a payment, the giving of a memorandum signed by the vendor, the vendor's refusal to execute a more formal agreement and her refusal to refund the down money. It