Appleby v. Barrett

Citations

• 28 Pa. Super. 349
• 1905 Pa. Super. LEXIS 199

Syllabus

<p>Evidence — Affidavit of defense — Parol evidence — Written instrument — Set-off.</p> <p>Where an affidavit of defense sets up an oral agreement to vary the terms of a written agreement it must contain an averment that the defendant was induced to sign the writing by reason of the oral agreement.</p> <p>In an action upon a promissory note an affidavit of defense is insufficient which sets up that the note was'to be paid only out of profits of a business in which the plaintiff and defendant were to engage, without any averment of fraud or mistake.</p> <p>The averments of a set-off in an affidavit of defense must be set forth with the same clearness and particularity that are required of a plaintiff in his statement.</p> <p>A debt or the damages which can be set off as an independent counterclaim must be such as a jury can find and liquidate in the ordinary way just as if the defendant were a plaintiff suing in debt, assumpsit or covenant. But where the right of the defendant is only to call the plaintiff to an account, and this demand is such as must be settled in an action of account rendered, or by bill in equity for an account, it is not a proper set-off.</p> <p>In an action upon a promissory note by one partner against another, the defendant cannot set up in his affidavit of defense an unascertained balance alleged to be due upon the unsettled partnership account.</p>