Reilly v. Daly

159 Pa. 605 | Pa. | 1894

Opinion by

Mr. Justice Green,

It must be confessed that the plaintiffs displayed but little wisdom in accepting the defendant’s promises to pay them for excessive charges in his accounts, instead of corrections of the accounts by the decree of the auditing judge. But whether wise or unwise, the defendant’s promise to pay whatever fee should be allowed to his counsel, out of his commissions, and that the estate should not be charged with any amount as a fee to his counsel, was in writing, and his- affidavits set forth no real defence to it. It is of no consequence to say that it was signed by him “ in the haste and excitement of the court room,” and “ does not contain the agreement as he made it.” Such allegations are totally insufficient to set aside written agreements. There is no allegation of fraud, misrepresentation or mistake, or that he was induced by any parol promise which was subsequently broken, to sign the agreement, and nothing short of such defences could be heard against the contract. We think the affidavits disclose no defence against this part of the claim.

As to the item $116.50 for excessive commissions charged in defendant’s second account, he makes no defence at all except the general release subsequently asserted which will be presently considered.

As to the item of $173, it is ‘founded upon a written order given by Boyd, defendant’s counsel, on the defendant, for the payment of that amount of money out of the fees allowed him in the adjudication made by the orphans’ court. The claim is only made upon the order, and not upon any promise of defendant to accept such an order, or any order, drawn by Boyd. It was never accepted by Daly and therefore he is not liable upon it as an order for the payment of money. Maginn v. Dollar Savings Bank, 131 Pa. 362; Hazleton Co. v. Improvement Co., 143 Pa. 581. As an equitable assignment of a fund it is of no avail against the affidavit of defence, which alleges that the acceptance was refused because Boyd was largely indebted to him. • We do not think it was necessary for the defendant to go into a minute specification of such indebtedness in an affidavit of defence, as the unaccepted order created no prima facie liability on Daly’s part which he was bound to dispel by alleging a specific set-off. Any indebtedness from Boyd to him which did not leave the clear sum of $173 due to Boyd, would be a sufficient reason for refusing to accept, and as there is nothing on the record showing such air amount of indebtedness affirmatively, a denial of it is enough to carry the question to a jury, where the whole subject can be heard and determined.

So far as the alleged releases are concerned they amount to nothing, for several reasons, one of which is alone sufficient to demonstrate the inadequacy of their allegation. The alleged promises of the defendant to pay were outside of the balances determined by the accounts to be due to the heirs, and therefore any releases of such balances would be no reply to such promises. Moreover the affidavits do not annex any copies of the releases nor disclose their contents, nor do they give any particulars from which their applicability to the defendant’s promises of payments can be determined.

It is not clear that judgment can be entered for the plaintiffs under the act of May 31, 1893, P. L. 185. That act only provides that judgment may be taken for such amounts of the plaintiff’s claim as are admitted to be due, and that execution may issue for such admitted indebtedness, with a right to proceed to trial for the remainder of the claim. It was doubtless passed to settle all doubts upon that subject, as there were different opinions relating to it. But it would be inapplicable in this case because these affidavits do not admit anything to be due. While in our opinion they are insufficient as to two items of the claim, they are not admissions of the correctness of those items, and literally the case is not brought within the terms of the act. We feel obliged with some reluctance to reverse the judgment because of the situation as to the third item of the claim.

Judgment reversed and procedendo awarded.