28 Pa. Super. 349 | Pa. Super. Ct. | 1905
Opinion, by
The plaintiff brought this action upon a promissory note payable to his order, made by the defendant, and explicitly averred in his statement that he was a bona fide holder of the note for full value. The defendant filed an affidavit of defense, which the court below upon a rule for judgment held to be sufficient, and the plaintiff appeals.
The affidavit of defense did not deny that the plaintiff had paid full value for the note at the time it was given, nor did it attempt to assert that there had been any failure of consideration. The only defense attempted to be set up was founded upon an alleged parol understanding as to the manner in which the note should be paid. The material part of the affidavit is as follows: The defendant admits the making of the memorandum note upon which this suit is brought, but avers that the same was given by him merely as a memorandum and that it was distinctly understood between him and the said plaintiff that it was to be paid out of his share of the profits of certain business transactions hereinafter more particularly set forth, and not in cash. Defendant avers that on or about October 22, 1901, he entered into a business contract with the said plaintiff to engage in the real estate business in the city of Philadelphia, and that in and by said contract he, the said defendant, was to receive as compensation for his services a sum equivalent to the equal one-half part of the net profits derived from the various transactions of the
The affidavit contained no averment that the defendant was induced to sign the note bjr reason of the oral stipulation, and this was sufficient in itself to warrant the entry of judgment for the plaintiff: Martin v. McCune, 8 Pa. Superior Ct. 84; Keough v. Leslie, 92 Pa. 424. The averments of the affidavit do not indicate that any oral agreement was the inducing cause for the signing of the written.
In a suit between the original parties to a promissory note, parol evidence may be given to show what the consideration of the note was, that the consideration has failed, or that there was a parol agreement made contemporaneously with the note, and not inconsistent with it, by the fulfillment of which the note has been substantially paid: Michigan Mut. Life Insurance Company v. Williams, 155 Pa. 405; Martin v. McCune, 8 Pa. Superior Ct. 84: Fischer v. Dalmas, 173 Pa. 296; Clinch Valley Coal and Iron Company v. Willing, 180 Pa. 165. Such evidence does not contradict or vary the instrument. “ But no case goes to the length of ruling that such evidence is admissible to change the promise itself, without proof or even allegation of fraud or mistake : ” Anspach v. Bast, 52 Pa. 356.
Considered as an allegation of set-off, the averments of the affidavit are equally ineffective to prevent a judgment. He alleges that he “ entered into a business contract with the said plaintiff to engage in the real estate business in the city of, Philadelphia, and that in and by said contract, he, the said defendant, was to receive as compensation for his services a sum equivalent to the equal one-half • part of the net profits derived from the various transactions of the plaintiff in connection with the real estate business.” He is careful to avoid stating whether this contract was in writing or oral, and the affidavit does not pretend to give the contract in full. The affidavit may have been drawn in these ambiguous terms for the purpose of making it difficult to determine whether the plaintiff and defendant were or had been partners in the real estate business, but it can benefit the defendant nothing to leave the statement of his claim of set-off thus indefinite. The averments of a set-off must be set forth by the defendant in his affidavit with the same clearness and particularity that are required of a plaintiff in his statement. The defendant states 'that his compensation for his services was to be equivalent to
The record is remitted to the court below, with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.