Reilly v. Daly

Citations

• 159 Pa. 605
• 28 A. 493
• 1894 Pa. LEXIS 905

Syllabus

<p>Affidavit of defence — Executors—Parol evidence to vary writing.</p> <p>Where an executor agrees in writing to pay, out of his commissions, whatever fee should be allowed to his counsel, and that the estate should not be charged therefor, he cannot, in an action to recover from him the amount of the fee, allege that the writing was signed by him ‘ ‘ in the haste and excitement of the court room,” and did not contain the agreement as he made it. In the absence of any allegation, in the affidavit of defence, of fraud, accident or mistake, or that he was induced to sign by a parol promise which was subsequently broken, judgment will be entered against him for want of a sufficient affidavit of defence.</p> <p>Equitable assignment — Acceptance of order — Affidavit of defence.</p> <p>Where an order is drawn by one person upon another for the payment of money, the drawee is not liable upon the order unless he accepts it.</p> <p>If the order is an equitable assignment of a fund, judgment will not be entered against the drawee by reason of an insufficient affidavit of defence, if he avers that the assignee was largely indebted to him.</p> <p>In such a case it is not necessary for the defendant to go into a minute specification of the indebtedness in his affidavit of defence, as'the unaccepted order created no prima facie liability on his part which he was bound to dispel by alleging a specific set-off.</p> <p>Executors and administrators — Pelease.</p> <p>Where an executor promises to pay to the distributees of the estate certain moneys outside of the balances determined by the accounts, a release, by the distributees, of the balances, does not apply to the executor’s promises.</p> <p>Affidavit of defence — Judgment for part dixe — Act of May 31, 1893.</p> <p>Under the act of May 31, 1893, P. L. 185, judgment cannot be entered for certain amounts claimed by plaintiff but denied by defendant to be due, although the court decides that the affidavit of defence is insufficien