Faux v. Fitler

Citations

• 223 Pa. 568
• 72 A. 891
• 1909 Pa. LEXIS 577

Syllabus

<p>Promissory note — Evidence—Parol evidence — Fraud—Contemporaneous agreement — Partnership.</p> <p>1. 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.</p> <p>2. In an action on promissory notes an affidavit of defense is sufficient which avers that the defendant, the maker, was induced to sign the notes by a contemporaneous agreement on the part of the plaintiff, the payee, that if losses should occur to an amount named in a partnership between the parties the note should not be enforced, and that such losses had in fact been made.</p> <p>Affidavit of defense — Whole claim — Part of claim — Judgment.</p> <p>3. Where a plaintiff takes a rule for judgment for the whole amount of his claim for want of a sufficient affidavit of defense, he cannot ask that judgment be entered for part of the claim apparently due under the affidavit of defense.</p>