Leuten Brick Co. v. Killen

Citations

• 235 Pa. 144
• 83 A. 576
• 1912 Pa. LEXIS 514

Syllabus

<p>Contract — Written agreement — -Parol evidence — Affidavit of defense — Payment.</p> <p>1. In an action upon a written contract for goods sold and de- ' livered, an affidavit of defense is insufficient, which merely sets up a prior parol agreement at variance with it, without any offer to prove at the trial that the parol terms were omitted by fraud, accident or mistake.</p> <p>2. In such a case it is clearly insufficient for the defendant to aver'that he was too busy to read the written contract presented to him by the clerk of the plaintiff, and took the word of the clerk that it contained the agreement which the defendant had previously made with the plaintiff, without any averment that he could not read, or that he had no opportunity to read the paper before signing it, or that the clerk had outlined certain facts to him as contained in the paper which were not there, or did any other overt thing to mislead or deceive him.</p> <p>3. An averment in an affidavit of defense that the plaintiff “accepted” something in payment of its claim is the averment of a conclusion and as such is insufficient to prevent a summary judgment.</p>