Myers v. Kipp

Opinion by Rice, P. J., This is an appeal from a judgment for want of a sufficient affidavit of defense in an action upon the following instrument for the payment of money: “Philadelphia, June 5, 1899. Due. D. J. Myers, trustee, eight hundred and forty-six dollars and fifty cents, payable at any time within eighteen months. To secure which I have deposited nine shares of the capital stock of the Sikes Company on which I have reserved the right to vote. Payable with interest.” The* affidavit of defense alleges, inter alia, that “your defendant was requested to give and did give the note or duebill upon which suit is brought as a memorandum note to be held by the trustee until the money advanced by DeTurck, Mcllvaine and Buck, and the indebtedness due them respectively from the Hamilton Furniture Company should be repaid in full, after which the said note was to be returned and surrendered to your defendant.” The appellants’ counsel state the question involved in the appeal as follows : Is parol evidence admissible to show a collateral contemporaneous agreement upon the faith of which a duebill was executed; such agreement being to the effect that if a certain fund in the hands of the plaintiff, a trustee, was sufficient to pay certain parties for whom he was trustee, the duebill was not to be paid, but was to be paid only if the said fund was not sufficient to pay said parties ; to be followed by proof that the said persons had been paid from the said fund in the said plaintiff’s hands as trustee, thereby showing that the contingency has arisen upon which the duebill was not to be paid? An affirmative answer to the foregoing question does not necessarily involve a reversal of this judgment. The proposition as stated by counsel assumes two essential facts : first, that the plaintiff, or some one having authority to speak for the parties for whom he was trustee, promised and agreed that in a certain contingency the defendant should not be required to pay the sum he admittedly received; second, that the alleged contem [316] •poraneous agreement was the inducement for the execution of the paper, without which it would not have been signed. But the first mentioned fact is not positively and unequivocally averred in the affidavit of defense, nor is that fact, namely, that the collateral promise or agreement was made by the plaintiff or some one having authority to speak for the parties for whom he was trustee, the necessary and only possible inference that can be drawn from the facts alleged. And it is scarcely necessary to say that evidence of promises made by some other person, as, for instance, promises made by Clark alone, would not be admissible to vary the terms of the contract. As to the second fact the affidavit is silent; that is, it does not allege that it was upon the faith of the agreement the due-bill in suit was signed. ‘“This is essential to the admission of parol evidence of an agreement to vary materially or contradict a written contract: ” Callan v. Lukens, 89 Pa. 134. Even if it be conceded that on the trial the defendant would not be permitted to testify that the oral agreement was the inducement without which the written one would not have,been signed, but that this would be for the determination of the jury from what was said and done at the time but see Commonwealth v. Julius, 173 Pa. 322, and cases there cited — it is nevertheless clear that the fact is an essential part of the defense and must be distinctly averred in an affidavit of defense. It is not sufficient to aver facts from which a jury may possibly infer it. This principle has been recognized in other pleadings : Clark v. Partridge, 2 Pa. 13, and cases there cited. See also Wodock v. Robinson, 148 Pa. 503. It applies with equal reason to affidavits of defense. “ It is too well settled to need citation of authorities that the affidavit must contain all the facts necessary to make a legal answer to the claim, and that their omission cannot be supplied by possible inference. ... It is a reasonable and salutary rule which requires that the facts relied on as a defense shall be plainly stated in the affidavit, that the court may judge of their legal effect as an answer to the claim. While technical precision in the statement of the facts is not demanded, a plain and intelligible averment is necessary: ” Class v. Kingsley, 142 Pa. 636. An affidavit of defense must be complete and explicit in setting forth the essential elements of the defense, whether legal or equitable, and there are no cases in which this rule has [317] been or ought to be more rigidly enforced than where, in defense to an action upon an instrument for the payment of money at or within a certain time, it is alleged that there was a contemporaneous parol agreement that in a certain contingency the promisor should not be required to pay. The rule as to this class of cases, as established by the decisions, has been correctly stated as follows : But wherever a parol agreement is relied upon, the agreement and all material circumstances connected with it must be set out with great clearness and particularity, and none of the allegations required to make it effective must be left to inference : 1 P. & L. Dig. of Dec. Col. 203. “ The existence of the parol contract, and of the conditions under which it may be proved, are alike in importance ; the former can be shown only when the existence of the latter is established. And when such an agreement is alleged, the conditions that make it admissible must be set forth : ” Commonwealth Title Ins. & Trust Co. v. Folz, 19 Pa. Superior Ct. 28. We are of opinion that the affidavit is defective in both of the essentials above referred to, and therefore that the court did not commit error in entering judgment for the plaintiff, “ without prejudice to the right of the defendant to file a bill for an account.” This it seems to us preserved to the latter any equitable rights that he may have. Judgment affirmed.