The opinion of the court was delivered, by
Agnew, J. —In Kountz v. Kirkpatrick & Lyons, opinion just read, we have held that a temporary, unnatural and inflated market price, produced by a combination of dealers in oil, for selfish and personal gain, is not the true measure of the value of that article of trade; and that on showing such a state of the market on the day of the performance of his bargain, the defendant could resort to the market prices prevailing just before and after the day, and to other evidence of the true market value of the article, to enable the jury to ascertain the,par value of the article on that day, as the measure of the damages for his breach of contract. The refusal of the court below to receive evidence for this purpose in this case was therefore error.
It is argued that this refusal of the court was founded upon a proper interpretation of the aflidavit of defence filed by the defendant, by the order of the court in this case, and under its general rule. It is to be conceded that usually the courts making rules of practice are the best judges of their interpretation and application; but the question here arises upon the true interpretation of the aflidavit itself rather than upon the rule. We have said heretofore that too much nicety should not prevail in considering affidavits of defence, when a,solid or substantial defence is really set forth; otherwise the rule will be converted into a snare to entrap justice: Leibersperger v. Reading Savings’ Bank, 6 Casey 531; Thompson v. Clark, 6 P. F. Smith 33. This affidavit sets forth in unambiguous terms an illegal combination of the plaintiffs and others to buy up oil, create a scarcity and enhance the price, for the very purpose of preventing the defendant from complying with his contract, and to enable them to make great gains. It sets forth also the means whereby this purpose was accomplished, and that the confederates succeeded in raising the price of oil between the dates named in the affidavit from 13^ cents up to 18 cents per gallon. It also states that on the 31st of December 1869, the day when the contract was to be performed, the fair market price of oil was considerably less than 18 cents per gallon. Now, clearly, this would have been a good defence to the inflated, fictitious and temporary price as a proper measure of damages. But the court below thought that the statement, that the confederates succeeded in raising the price on the 31st of December 1869, to 18 cents a gallon, was an admission of that being the market price. It was an admission of an inflated market price, but not that it was the fair market value of the oil. What the defendant averred substantially was, that the market price on that day was the result of an unlawful combination *397to put up the price, but that the fair market value of the oil was considerably less than 18 cents per gallon, which was the price sworn to in the plaintiffs’ affidavit of claim. What more could the defendant say truthfully ? He could not conscientiously deny that the apparent price in the market on that day was 18 cents; but he could conscientiously say that the price was not the fair and true market value of the oil on that day, and that the fictitious and inflated price was not the true measure of the damages. This he did say substantially, and he should have been permitted to prove the truth of his averments. The affidavit of defence had performed its office, he was now on the trial of its truth, and he clearly had not admitted that 18 cents ivas the fair market value of oil on that day.
Judgment reversed, and a venire facias de novo awarded.
Sharswood, J.— I concur on the authority of Kountz v. Kirkpatrick & Lyons.
Williams, J., dissented.