Horner v. Horner, 145 Pa. 258

Horner v. Horner

145 Pa. 258 | Pennsylvania Court of Common Pleas, Adams County | 1892

Opinion,

Mb. Justice McCollum:

The contest in this case is between the maker and payee of the note in suit. The note is therefore subject to any equitable defence or set-off which the maker has against it. If it was executed and delivered upon, and as part of the agreement set out in the affidavits, the terms of the agreement, and the damages resulting from a breach of it, are matters proper to be considered in this action. As no time is mentioned in the note for its payment, the legal inference is that it is payable on demand; but this inference may be rebutted by proof of a contemporaneous parol agreement fixing the time for the payment of it: Ross v. Espy, 66 Pa. 481. Such agreement is not in contradiction of the terms of the written instrument; it only prevents the implication raised by the law, in the absence of any agreement as to the time of payment. The evidence of it is not, therefore, in violation of the rule which, forbids the introduction of oral testimony to destroy, contradict, or vary the terms of a written contract. It is also well settled in Pennsylvania, that a written instrument, obtained on the faith, of a *264contemporaneous parol agreement, cannot be enforced in violation of such agreement. The attempt to so use it, subjects the writing to modification or contradiction by parol evidence of what occurred at its execution.

In view of these principles, we think the affidavits of the eighth and twentieth of May contain a valid answer to the appellee’s claim. But it is alleged that they were not presented in time, and that the judgment was properly entered for want of an affidavit of defence. If this is so, the judgment must stand, because we cannot review the action of the court in refusing to take off a judgment so entered. We may think that the court, in the exercise of a sound discretion, might properly have set aside the judgment, and allowed the appellant to present her defence to a jury, but this alone would not justify a reversal for denying her motion to take it off. It must be a palpable abuse of discretion, which will warrant our interference in such a matter. We inquire, then, whether it was the duty of the appellant, under the rules of court, to answer the appellee’s claim by affidavit, and, if so, whether she was in default at the time the judgment was entered.

There are three rules of court which relate to the subject, and these we will consider in the order of their adoption. The first provides, that when the defendant appeals from the judgment of a justice of the peace, he shall, at the time of filing the transcript, enter and serve a rule on the plaintiff to declare in thirty days from the first day of the term to which the transcript is filed, and that the plaintiff shall give notice to the defendant of the filing of the narr, and to plead in thirty days. The second rule is, in terms, alternative to the first, and provides that the transcript may be treated as the narr, and, within thirty days from the filing of it by the defendant, he shall plead to it. The third rule makes the pleadings and the procedure on appeals from the judgments of justices of the peace the same as in like cases commenced in court, but dispenses with the filing of a statement of claim, other than the transcript, unless the defendant enters a rule for a more specific statement; and, in such case, on the filing of such statement, he “ is required to reply thereto by affidavit, as in the other cases.” In this case, therefore, the appellant might have treated the transcript as a narr, and, if she had done so, she could not have been called *265on for an affidavit of defence. But she elected to require a more specific statement of claim, and when she received notice of the filing of it, she became liable to be proceeded against under the third rule. There is nothing confusing or inconsistent in these rules; they constitute an intelligible system, under which the appellant had an option to treat the transcript as the narr, or compel a more specific statement of claim. As she sought and obtained a more specific statement, it became her duty to file a sworn answer to it within thirty days. Because she did not do this, judgment was entered against her under the rules. These rules are not unreasonable, and the power of the court to make them cannot be doubted.

We are unable to find any action on the part of the appellee which can be construed into a waiver of her right to require an affidavit of defence. The notice to plead was compulsory, by the terms of the rule under which the appellant proceeded for a more specific statement of claim, and cannot operate as a waiver or estoppel. It may be conceded that the right to an affidavit of defence may be waived, but a mere notice to plead, when required by the rule under which the appellant asked for a specific statement, is not a waiver. In O’Neal v. Rupp, 22 Pa. 395, a rule to plead and a rule to arbitrate were entered nearly four months after the affidavit of defence was filed, and subsequently a judgment was taken for want of a sufficient affidavit; and it was held that “a party who intends to ask for judgment for the reason that the affidavit of defence is deficient, must do so before he has taken any steps in the cause, subsequent to the affidavit, calculated to mislead his opponent.” But, in Duncan v. Bell, 28 Pa. 516, this court refused to hold that the reference of a cause to arbitrators at the instance of the plaintiff, and an award in his favor, from which the defendant appealed, making the usual affidavit for that purpose, was a waiver on the part of the plaintiff of the right to require an affidavit of defence. The case, as reported, is misleading, because the only point decided was that the affidavit was filed in time. We have noticed these cases specifically, as they are cited by the appellant in support of her claim of waiver.

As we cannot agree with the appellant that there was a waiver, or that the rules in question are confusing, inconsistent or unlawful, we are constrained to affirm the judgment.

Judgment affirmed.