General Motors Truck Co. v. Philadelphia Paving Co.

Citations

• 248 Pa. 499
• 94 A. 235
• 1915 Pa. LEXIS 601

Syllabus

<p>Contracts — Written instruments — Variation by parol — Replevin —Set-off—Affidavits of defense — Insufficient averments.</p> <p>1. The terms of a written instrument cannot be changed byparol evidence of an alleged contemporaneous oral agreement, in the absence of allegation and proof that the provisions of the oral agreement were omitted from the writing by fraud, accident, or mistake.</p> <p>2. Replevin is in form an action ex delicto and in such action the defendant cannot avail himself of a defense in the nature of a set-off, for the reasons that the demand is uncertain in its nature, and the fact that plaintiff is indebted to the defendant is no justification for a tortious act.</p> <p>3. In an action of replevin for motor trucks in defendant’s possession under a lease which provided that upon the lessee’s failure to pay a stipulated rental, the lessors should have the right to take immediate possession of the goods wherever found and that “there are no representations, agreements or undertaking, express or implied, relating to said goods, other than those contained herein,” where from the statement of claim it appeared that the rental had not been paid, an affidavit of defense alleging the breach of a contemporaneous oral agreement by plaintiff to establish a well equipped service station at which repairs to the motors could be made and new parts furnished as required, at-1 tempted to vary the terms of a written instrument by parol, without alleging the omission of anything from the writing by fraud, accident, or mistake, and further attempted to set up a defense in the nature of a set-off, and was properly held to be insufficient to prevent summary judgment..</p>