Architectural Tile Co. v. McSorley

• Decision Date: 01 May 1933
• Docket Number: 94
• Citation: 166 A. 913,311 Pa. 299
• Parties: Architectural Tile Co. v. McSorley, Appellant
• Court: Pennsylvania Supreme Court

166 A. 913

311 Pa. 299

Architectural Tile Co. v. McSorley, Appellant

No. 94

Supreme Court of Pennsylvania

May 1, 1933

Argued March 29, 1933

Appeal, No. 94, March T., 1933, by defendant, from judgment of C.P. Allegheny Co., Oct. T., 1932, No. 75, for plaintiff for want of sufficient affidavit of defense, in case of the Architectural Title Company v. John McSorley. Affirmed.

Assumpsit on trade acceptances. Before MACFARLANE, P.J., GRAY and MARSHALL, JJ.

The opinion of the Supreme Court states the facts.

Judgment for want of sufficient affidavit of defense. Defendant appealed.

Error assigned, inter alia, was judgment, quoting record.

The judgment of the court below is affirmed.

Charles A. Woods, Jr., with him Dickie, Robinson & McCamey, for appellants.

David Roth and Frank R. S. Kaplan, for appellee, were not heard.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

PER CURIAM:

Defendant appeals from judgment entered for want of a sufficient affidavit of defense. The action was assumpsit to recover the amount of three trade acceptances drawn by plaintiff to its own order upon defendant and accepted by him. The affidavit of defense admits all averments of the statement of claim and sets up as a defense an oral agreement, alleged to have been made at the time the instruments in question were executed to the effect that payment would not be demanded until the buildings for which the materials were furnished had been "adequately financed by mortgage or otherwise." Defendant also alleges he accepted the instruments to enable plaintiff to use them as evidence of the indebtedness with a bank or banks, but that if, at maturity, defendant was unable to pay the same, they would be lifted by plaintiff, or if defendant was able to pay any amount on account of the trade acceptances at maturity, such an amount would be accepted by plaintiff and new obligations taken for the balance.

The lower court properly held the defense amounts not merely to an alteration of the instruments sued upon but to a contradiction and nullification of the same. As we said in Homewood Peoples Bank v. Heckert, 207 Pa. 231, 232 "Admit all the facts set out in the affidavit, they only amount to proof of an oral agreement flatly contradicting the written instrument. Fraud, accident or mistake could not be averred on such an agreement, in the face of the absolute written agreement to pay a fixed sum on a day certain. At the very most it amounts only to a parol promise of further time indulgence to the debtor by the creditor. As said by SHARSWOOD, J., in Heist v. Hart, 73 Pa. 286, 'such parol agreement...