49 Pa. Super. 257 | Pa. Super. Ct. | 1912
Opinion by
In Sloss-Sheffield Steel & Iron Co. v. Iron Co., 46 Pa. Superior Ct. 164, our Brother Morrison pointed out the attitude of our appellate courts towards an appeal taken by a plaintiff, under the Act of April 18, 1874, P. L. 64, from an order or decree discharging a rule for judgment for want of a sufficient affidavit of defense. Where in such cases the appeal is dismissed, it ought not to be expected that the court would attempt to anticipate or prejudge the precise questions that might thereafter be presented by the record in case of another appeal after final judgment following a trial. We shall therefore indicate in the briefest possible way the reasons for the conclusion reached.
The plaintiff, a New Jersey corporation, sues to recover the price of certain goods sold and delivered to the defendant, a Pennsylvania corporation doing business in the city of Philadelphia. The affidavit of defense practically admits the receipt of the goods and its primary obligation to pay for them at the prices charged. It advances, however, a counterclaim or set-off against the plaintiff amounting to something more than the sum sued for. In setting forth the nature of this claim and the manner in which it arose, it was stated that in the year preceding the one in which occurred the transaction in suit, to wit, in 1909, the parties had entered into contracts for the purchase and sale of articles similar to those embraced in the transaction in suit, to wit, fan motors operated by direct current and alternating current. It is averred that at the time such
In the light of a long fine of authorities, but one or two of which we shall particularly notice, it is clear enough that the plaintiff’s proposition at the best is but a doubtful one and that the record exhibits no proper case for the entry of a summary judgment. In Sloss-Sheffield Steel & Iron Co. v. Iron Company, 46 Pa. Superior Ct. 164, Judge Morrison speaking for this court, used this language: “It hardly seems necessary to cite authorities that this alleged parol agreement must be considered with the written contract in determining the rights of the parties, if the defendant can support it by sufficient evidence at the trial. In Thomas & Sons v. Loose, 114 Pa. 35, the late Justice Trtjnkey, speaking for the Supreme Court, said: ‘Parol evidence is admissible to establish a contemporaneous oral agreement, which induced the execution of a written contract, though it may vary, change or reform the instrument.’ See Wheatley v. Niedich, 24 Pa. Superior Ct. 198; Gandy v. Weckerly, 220 Pa. 285.” In Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165, Mr. Justice Williams said: “It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel
Without attempting then to consider or discuss the question as it may be presented upon an appeal by either party after final judgment, we are all of the opinion that the pleadings show no such clear case in favor of the plaintiff as would entitle it to a summary judgment and the learned court below was right therefore in discharging the rule.
Appeal dismissed at the costs of the appellant but without prejudice, etc.