McCord v. Durant

• Decision Date: 07 April 1890
• Citation: 134 Pa. 184
• Parties: J. S. McCORD, ADMR., v. W. L. DURANT.
• Court: Pennsylvania Supreme Court

Page 184

134 Pa. 184

J. S. McCORD, ADMR., v. W. L. DURANT.

Supreme Court of Pennsylvania.

Argued March 26, 1890.

Decided April 7, 1890.

Before PAXSON, C. J., GREEN, CLARK, McCOLLUM and MITCHELL, JJ.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 164 July Term 1889, Sup. Ct.; court below, No. 22 March Term 1888, C. P. No. 1.

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Mr. Wm. Henry Lex, for the appellant.

Mr. James M. West (with him Mr. J. Martin Rommvl), for the appellee.

PER CURIAM:

The first three assignments of error are not according to the Rules. They do not give the rulings of the court below in the precise phraseology used, but only its substance. See Rule XXIII. Nor does the paper-book of appellant give the charge literally, in any part of it.

We discover no error in the direction to find for the defendant. The plaintiff put in evidence the affidavit of defence, from which it appears that the agreement of October 19, 1872, had been fulfilled by Durant. The affidavit sets forth that "the consideration of the making of this agreement, (February 8, 1875,) which completely abrogated and nullified the agreement of October 19, 1872, on which this suit is brought, was the payments already made thereon, amounting to $3,525.90, and the execution and delivery to said J. D. Williams of four certain promissory notes, each for the sum of $500, dated February 8, 1875, payable at six, ten, fourteen, and eighteen months, respectively, made by deponent, and indorsed by one J. C. Jamison. Deponent further says that said agreement sued on was completely and entirely nullified, abrogated, and satisfied by the said agreement of February 8, 1875, and that his whole indebtedness to said J. D. Williams was merged in, and evidenced by, said promissory notes above set forth, and that no indebtedness exists on his part to said J. D. Williams, or has existed thereon, by reason or on account of said agreement, since the eighth day of February, A. D. 1875." As this affidavit was put in evidence by the plaintiff, we must give it due credit, so far as he is concerned. If, moreover, we look at the agreement of February 8, 1875, it would seem to sustain the statements in the affidavit, and the view taken of the case by the learned judge below. There was no error in treating the promissory notes as payment, and in ruling that the remedy must be upon them.

Judgment affirmed.