Miller v. Fry

Opinion by Trexler, J., This was an action of assumpsit by the payee against the maker of a promissory note. The court below entered judgment for want of a sufficient affidavit of defense. We think the defendant was entitled to go to trial. The affidavit is not as clear and precise as we might wish, but we cannot say it is so faulty as not to disclose a valid defense. After specifically denying the material facts contained in. the statement, it alleges that the plaintiff and defendant, desiring in common to borrow the sum of $1,000 for the benefit of J. W. Bittinger, jointly obtained said sum. from the Industrial National Bank of West York and paid it over for the benefit of Bittinger; the note being signed by the defendant to the order of the plaintiff and that he, the defendant, received no part of the proceeds of the note. As between the parties to this suit, the affidavit is an averment of no consideration, and an absence of any contractual relation excepting such as would arise by reason of their joint liability, and that the payee warranted the payment of the debt by Bittinger. The learned judge of the court below held that this was attempting to contradict, or vary the terms of a written instrument by parol evidence, without proof or allegation of fraud or mistake and that such departure from the terms of a written instrument must be shown by evidence, clear, precise and indubitable. In this we think he was in error. Where the contemporaneous parol agreement induced the defendant to enter into the contract, he may prove such contemporaneous agreement by parol evidence. In doing this it is not necessary that the party was actuated by fraud in obtaining the defendant’s signa [478] ture. His asserting rights subsequently, contrary to the agreement of the parties, constitutes fraud. When the defendant alleges a defense of such a character and asserts that he expects to prove it at the trial, the presumption is that he will do so by proper proof at the trial. Whether the appellant will be able to sustain his defense by the proper measure of proof is not a question now before us: Gandy v. Weckerly, 220 Pa. 285 (293). There are a large number of cases which hold that an affidavit of the character of the one which is before us is sufficient to prevent judgment. Among them are Faux v. Fitler, 223 Pa. 568; Kennett Square National Bank v. Shaw, 209 Pa. 313; Marquis v. McKay, 216 Pa. 307. As stated by Justice Mestkezat in Faux v. Fitler, supra, quoting Clinch Valley Coal and Iron Co. v. Willing, 180 Pa. 165: “The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the ■ enforcement of the paper is attempted. 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 literal compliance with its terms, regardless of the contemporaneous agreement without which it would never have been signed at all.” The question is also fully discussed in Gandy v. Weckerly, 220 Pa. 285. These cases so clearly apply to the one before us that we deem further comment unnecessary. The judgment of the lower court is reversed and a procedendo awarded.