Callan v. Lukens

The judgment of the Supreme Court was entered March 17th 1879, Per, Curiam. We cannot agree with the learned counsel of the defendant in error, that a supplemental affidavit is confined to an explanation of the original and cannot set up a new and different [136] defence. Such a course, however, is suspicious and requires that the new defence should be closely scrutinized. The original affidavit in the case before us was evidently drawn by the plaintiff in error, himself, or some unprofessional friend. The defence set up in it was plainly contradicted by the written agreement. The supplemental abandons this defence and sets up a new one founded upon a reform of the contract, but though it alleges an agreement at the time of executing the writing, it fails to allege that upon the faith of the new agreement the contract was signed. This is essential to the admission of parol evidence of an agreement to vary materially or contradict a written contract: Miller v. Henderson, 10 S. & R. 290; Boyd v. Bruce, 3 Phila. R. 206. No new agreement is, however, averred, but only a promise that the payments should be arranged to the satisfaction of affiant. How this shows any defence is not explained. The subsequent agreement alleged to have been made by the plaintiff below, to pay the expense of putting the walls in a proper-condition to build on was clearly without consideration. As to the $14 for insurance,, affiant says that plaintiff charged him with it, but not that he paid it, either on account or otherwise. Talcing the two affidavits together, we think they fail to made out any available defence in that clear and unambiguous manner which has always been required in such instruments. Uidgment affirmed.