First National Bank v. Tustin

Citations

• 246 Pa. 151
• 92 A. 119
• 1914 Pa. LEXIS 486

Syllabus

<p>Mortgages — Defenses—Contemporaneous parol agreement — Negotiable instruments — Promissory notes — Protest—Notice of dishonor — Liability of endorser — Affidavits of defense — Set-off—Insufficient affidavit.</p> <p>1. The terms of a mortgage may not he varied in an action on the mortgage by setting up a parol agreement contemporaneous with the execution of the mortgage in the absence of an averment that anything was omitted from the mortgage by fraud, accident or mistake.</p> <p>2. The endorser of a promissory note is not discharged from liability thereon by reason of the failure of the holder of the note to cause the same to be protested; all that is required is that the' note shall be presented for payment and notice of nonpayment be given the endorser.</p> <p>3. A claim by way of set-off in an affidavit of defense will not be allowed where it appears that the demand is not made by the defendant in his own right.</p> <p>4. A claim by way of set-off for $10,000 damages caused by the failure of the plaintiff to mark certain suits settled and discontinued in accordance with an alleged agreemént so to do, without setting forth with particularity the circumstances of the alleged default, lacks the definiteness required in statements of claim and is insufficient to prevent judgment.</p> <p>5. In an action of scire facias sur mortgage, the statement of claim alleged that the mortgage was given to secure a certain indebtedness evidenced by a promissory note made by a third person and endorsed by defendant, at whose request such note had been discounted by plaintiff; and that default had been made in the payment of the principal of the note and all installments of interest. The affidavit of defense alleged that , the consideration for the mortgage had failed, the note in question having been given in settlement of certain suits which had been brought by plaintiff against the maker of the note on prior promissory notes, upon the express agreement that such actions would