Clinch Valley Coal & Iron Co. v. Willing

• Decision Date: 22 February 1897
• Docket Number: 350
• Citation: 36 A. 737,180 Pa. 165
• Parties: Clinch Valley Coal and Iron Company to the use of Henry S. Grove and George McCall, Trustees, v. George Willing, Appellant
• Court: Pennsylvania Supreme Court

36 A. 737

180 Pa. 165

Clinch Valley Coal and Iron Company to the use of Henry S. Grove and George McCall, Trustees, v. George Willing, Appellant

No. 350

Supreme Court of Pennsylvania

February 22, 1897

Argued January 8, 1897

Appeal, No. 350, Jan. T., 1896, by defendant, from order of C.P. No. 1, Phila. Co., Dec. T., 1895, No. 1093, making absolute a rule for judgment for want of a sufficient affidavit of defense. Reversed.

Assumpsit on promissory notes.

Rule for judgment for want of a sufficient affidavit of defense.

The facts appear by the opinion of the Supreme Court.

Error assigned was in entering judgment for want of a sufficient affidavit of defense.

The judgment is reversed and the record remitted. A procedendo is awarded.

J Bayard Henry, for appellant. -- Where an affidavit of defense clearly and specifically sets forth a verbal agreement which induced the execution of the promissory notes in suit, and that evidence is substantiated by deeds of trust upon which the notes are based, the affidavit is sufficient: Martin v. Fridenberg, 169 Pa. 447.

Parol evidence is admissible to show a contemporaneous verbal agreement which induced the execution of a written agreement though it may have the effect of varying or changing the terms of the contract: Greenawalt v. Kohne, 85 Pa. 369; Bown v. Morange, 108 Pa. 69.

James Collins Jones, with him Lewin W. Barringer, for appellee, cited, Helfenstein's Est., 135 Pa. 293; Craft v. Webster, 4 Rawle, 242; McCausland v. Hickman, 3 W.N.C. 94; Phila. & Balt. Cent. R.R. v. Johnson, 54 Pa. 127.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

The plaintiff was the seller and the defendant was the buyer of certain town lots in the village of Richlands, Tazewell county, Viginia. A portion of the purchase money was not required to be paid at the date of the sale, but was deferred and made payable, one half in one year, and one half in two years thereafter. Notes were given by the defendant for these deferred payments, which were under seal and made payable to the plaintiff company "or its assigns." They each contained a recital of the fact that the payment of the note was secured by a trust deed executed by the defendant and wife to Frank M. Dick bearing even date with the note. The last of these notes fell due in May, 1892. This action was brought in January, 1896, and copies of the notes with their recitals were incorporated into the plaintiff's statement. The defendant filed an affidavit of defense which the court below held to be insufficient, and judgment was entered against the defendant for this reason: this appeal depends on the correctness of this ruling of the learned judge. It will be noticed that the affidavit admits the execution of the notes and the ultimate liability of the defendant for their payment, but sets up a contemporaneous parol agreement on the faith of which the notes were signed. This agreement is alleged to be that the lots were to be at once reconveyed to a trustee who should hold them as a security for the sums due upon the notes, and who should exhaust the security thus furnished before the payment of the notes should be required of the maker. After the lots had been sold and their proceeds applied upon the notes the balance, if any remaining due upon the notes after such application, was all that the defendant was to be called upon to pay. The affidavit further alleges that the trust deed conveying the lots to Mr. Dick to hold as security for the notes, and authorizing their sale by him if the notes were not paid at maturity, was duly executed and delivered that the...