Federal Sales Co. v. Farrell

Citations

• 264 Pa. 149
• 107 A. 668
• 1919 Pa. LEXIS 611

Syllabus

<p>Practice, O. P. — Affidavit of defense — Waiver—Set-off—Reply —Admissions—Appeals—Act of May 14,1915, P. L. 488.</p> <p>1. The right to enter a rule for judgment for want of a sufficient affidavit of defense, will not be held to be waived because of plaintiff’s having further proceeded in the cause in compliance with the requirements of an act of assembly or rule of court.</p> <p>2. PlaintifF may enter a rule for judgment for want of a sufficient affidavit of defense even though he has filed a reply to defendant’s claim of set-off.</p> <p>3. Under Sections 6 and 16 of the Act of May 14, 1915, P. L. 483, tbe undisputed facts appearing by tbe pleadings are admitted for all the purposes of the case, with the same effect as if they were embodied in the statement of claim itself.</p> <p>4. Hence, on a rule for judgment for want of a sufficient affidavit of defense the admissions of plaintiff’s reply will be considered.</p> <p>5. It is only in clear cases that this court will reverse the court below on appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense.</p> <p>Contracts — Written contract — Omission—Evidence—Fraud, etc. —Pleadings and proofs — Agency—Authority—Warranties.</p> <p>6. A written contract presumably expresses the full and exact agreement of the parties in regard thereto, and hence ordinarily great strictness of pleading and proof are required where it is admitted to modify or reform the writing.</p> <p>7. But where admittedly the writing does not fully express the agreement of the parties in regard to the matter under consideration, the same strictness of pleading and proof are not required.</p> <p>8. It is not necessary to aver or prove that something was omitted from a written instrument by fraud, accident or mistake, where the only claim is that it is attempted to be used in violation of an express agreement made to induce the party to sign it.</p> <p>9. A party cannot enforce a contract induced by warranti