Lowenstein v. Michael

Citations

• 55 Pa. Super. 628
• 1914 Pa. Super. LEXIS 27

Syllabus

<p>Practice, C. P. — Rules of court — Affidavits of defense by executors and administrators — Execution of promissory notes — Notice of special matter —Evidence.</p> <p>1. The courts of common pleas have the power to establish rules requiring affidavits of defense from executors and administrators.</p> <p>2. Where a rule of court provides that the execution of a.promissory note shall be taken as admitted at the trial, unless the defendant or some one in his behalf shall by affidavit of defense deny its execution, and where another rule of court requires executors and administrators to file affidavits of defense, proof of the execution of a note in an action against an executor will not be required at the trial, if it appears that no affidavit of defense has been filed denying the execution of the note.</p> <p>3. In an action against an executor on a promissory note where the only defense set up in the affidavit of defense is payment, and no special notice of any other defense was given as required by rule of court, evidence will not be admitted at the trial tending to show that the note was given in settlement of a partnership, and represented the amount due to the payee on the adjustment and final settlement of the partnership business, and that the amount represented by the note was not in fact due to the payee on the accounting of the partnership business.</p> <p>4. Where the result of the dealings of the parties is examined, mutually approved, and accepted, the consideration of an obligation given for the balance of the account so shown, is not simply the money to be paid; the stating of the account is the consideration moving between the parties; accordingly a mistake in the accuracy of the account must be specially pleaded when suit is brought on the settlement, or notice of the special matter must be given where such notice is a substitute for special pleadings.</p>