turing of said timber, by having no skill whatever in that particular, by abandoning the business of the company one month after its formation and doing everything in his power to wreck the said corporation,” and by having said company execute a fraudulent mortgage on its property and a sale thereof on said mortgage in foreclosure proceedings.

It will be observed that the averments of the affidavit substantially amount to an allegation that Hagerman did not comply with the promises he made in conducting the business of the West Florida Hardwood Company and permitted its property to be sold and defendant thereby to lose its stock. There is no averment that Hagerman's representations as to the existence and financial condition of the two companies or the property they held were false, or that he did not control the stock of the Southern Company, or that he did not expend large sums of money in acquiring an interest in the company. It is not alleged that Hagerman did not transfer to the defendant company the onefourth of the capital stock of the West Florida Company as he agreed to do; and hence It must be assumed that he complied strictly with his promise and transferred the stock. This was the consideration for the notes ex

of a promissory note. The learned court be-ercise any skill in the cutting and manufaclow made absolute a rule for judgment for want of a sufficient affidavit of defense, and the defendant has taken this appeal. The judgment was rightly entered by the common pleas. The single question for determination below and here is whether the averments of the affidavit were sufficient to put the indorsee to proof that he was a holder for value, before maturity, and without notice. The defendant seeks to impose this burden upon the plaintiff by the allegation of fraud and undue means in the procurement of the note in suit. The averments in the affidavit, however, are wholly insufficient for the purpose. In Grove v. Hodges, 55 Pa. 504, Mr. Justice Strong, delivering the opinion, said (page 519): "It would be going very far to hold that a man may be relieved from his deed by proof that when it was made promises were held out to him that were not performed, and that is the utmost that was exhibited in this case. Fraud, it is true, avoids all contracts; but fraud consists in false representations of things as facts which are not such, or in deceitful concealment of existing facts, neither of which is found in the evidence. ** * A promise is not, in itself, a false and deceitful representation. Performance may have been intended when the promise was made." The note in suit was given by the defendant to one C. W. Hager-ecuted and delivered by the defendant to man, who, as averred in the statement, in- Hagerman, one of which is now in suit. The dorsed and delivered it to the plaintiff be representations as to his ability in cutting fore maturity, for value, and in the regular timber was a matter of opinion about which course of business. The defense set up in the there could reasonably be a difference of affidavit is that the defendant company ex- judgment, and was not sufficient to convict ecuted and delivered the note in suit, to- of a fraudulent intent. Blair v. Laflin, 127 gether with four other notes, to Hagerman, Mass. 518. As has been said, there is no alunder an agreement with him by which the legation of the untruth of Hagerman's reprecompany was to receive one-fourth of the sentations as to existing facts relative to the capital stock of a company to be incorporated property of the West Florida Company or its under the name of the "West Florida Hard- value at the time the notes were given for wood Company"; that the notes were exe-one-fourth of its stock. If there were any cuted upon the reliance of representations misrepresentations, it was as to the manner of Hagerman that he controlled the capital in which he could or would conduct the lumstock of the corporation, known as the "South- ber business and of his intentions in regard ern Hardwood Manufacturing Company," to it. These, as we have seen, do not constiwhich owned valuable timber land in Flori- tute fraud in law, so as to shift the burden da; that he was skilled in the cutting of tim- of proof upon the holder of a negotiable inber and manufacturing the same for market; strument to show that he is a bona fide holdthat he had expended large sums of money er for value. So far as appears, Hagerman in acquiring an interest in the same; that may have intended, at the time he made the rights of the Southern Company to cut them, to carry out in good faith every repreand market timber would be transferred to sentation he made regarding his intentions the West Florida Company, of which Hager- and the manner of conducting the business; man was president; and that he would do all but, whether he did or not, they were not in his power to make it successful financially. representations of existing facts, but promIt is further averred that the "representa- ises to be fulfilled in the future in regard to tions, promises, and undertakings" were made the business of the corporation, the stock of for the purpose of defrauding defendant com- which was transferred to the defendants as pany; that it was Hagerman's intention to consideration for the notes given Hagerman. wreck the West Florida Company, in order If the allegations of mismanagement made by that he might acquire the rights and proper- the defendant company in its affidavit be ties of the company; and that Hagerman true, it had an ample remedy to have it cor"fraudulently accomplished said purpose by rected, and to have the company's rights ennot conducting the operations of the said forced. But the defendant is not in a posi

on the bona fide holder of a promissory note, | nal parties to the notes, the defendant could given as a consideration for its stock in the corporation, that it may be protected against the mismanagement of the corporation. That is substantially what is asked in the affidavit of defense to this action, and hence the affidavit is wholly insufficient to prevent judgment on the note in favor of an indorsee, prima facie a holder for value.

defeat a recovery by showing a contemporaneous parol agreement between the maker and the payee which induced the former to execute and deliver the notes, and which agreement had been violated by the payee. This doctrine is well settled by many deci sions in this state, the more recent of which, citing the earlier cases, are Keller v. Cohen, 217 Pa. 522, 66 Atl. 862, and Gandy v. Weckerly, 220 Pa. 285, 69 Atl. 858, 123 Am. St. Rep. 691. In Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165, 167, 36 Atl. 737, 57 Am. St. Rep. 626, Mr. Justice Williams, March 1, speaking for the court, said: "The existence of a contemporaneous parol agreement be1. EVIDENCE (8 443*)-PAROL EVIDENCE AF-tween the parties under the influence of FECTING WRITINGS-NOTES.

The judgment is affirmed.

(223 Pa. 568)

FAUX v. FITLER. (Supreme Court of Pennsylvania.

1909.)

As between the original parties to a note, a recovery may be defeated by showing a contemporaneous parol agreement which induced the execution of the note and which has been violated by the payee.

which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2048-2051; Dec. Dig. § 443.*] 2. EVIDENCE (8 466*)-PAROL EVIDENCE AF-instrument by representations as to the manFECTING WRITINGS-NOTES.

As against the original payee of notes, the maker may show a contemporaneous parol

agreement that, if losses occurred to an amount stipulated in the partnership business conducted by the parties, the maker should be released from liability on the notes, and that such losses

had occurred.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2145; Dec. Dig. § 466.*] 3. PLEADING ( 350*)-RULE FOR JUDGMENT FOR WANT OF SUFFICIENT AFFIDAVIT OF DEFENSE.

A plaintiff taking a rule for judgment for the whole amount of his claim for want of a sufficient affidavit of defense is not in a position to ask that judgment be entered for part of his claim, apparently due under the affidavit of defense.

[Ed. Note. For other cases, see Pleading, Cent. Dig. 1070; Dec. Dig. § 350.*]

Appeal from Court of Common Pleas, Philadelphia County.

Assumpsit on notes by William J. Faux against Alfred E. Fitler. From an order making absolute rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Francis M. McAdams, William H. Wilson, and Joseph P. Rogers, for appellant. Samuel W. Cooper, for appellee.

ner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its terms, regardless of the contemporaneous agreement without which it would never have been signed at all." That case was an action on two promissory notes given to secure deferred payments for town lots and secured by trust deeds for the lots. An affidavit of defense was held sufficient which averred that at the time the notes were executed a parol agreement was made that the lots should be reconveyed to a trustee who should hold them as security for the sums due upon the notes and exhaust such security before payment of the notes should be required of the maker, and that the agreement had not been carried out.

Andrews v. Packing Co., 206 Pa. 370, 55 Atl. 1059, was an action on certain promissory notes, and an affidavit of defense was held sufficient which averred that the notes were given as memoranda for advances by plaintiff to defendant on a contract under which the plaintiff was to sell on commission the product of the defendant's packing operations; that the plaintiff had refused to take the whole product, and by reason thereof part of it was left over and lost; that plaintiff had not accounted for the whole of the goods actually taken, and had overcharged commissions on the part sold and accounted for; and that plaintiff upon these transactions was indebted to the defendant in a greater sum than the amount of the note sued upon. In Kennett Square National Bank v. Shaw, 209 Pa. 313, 58 Atl. 622, it was held in an action on a promissory note by the payee against the maker that an affidavit was sufficient which averred that the note was to be discounted This controversy being between the origi- for the benefit of a certain corporation, and

MESTREZAT, J. This is an action of assumpsit by the payee against the maker of three promissory notes. The court below entered judgment against the defendant for want of a sufficient affidavit of defense for the whole amount of the debt and interest of the notes. We think the judgment is erroneous, and that the affidavit was sufficient to send the case to a jury.

setting up a written agreement by payee to The affidavit avers that there were "losses look to the dividends of said corporation for aggregating $3,193.75, and that there were payment. In Keller v. Cohen, 217 Pa. 522, other and greater losses involved in the said 66 Atl. 862, an action on two promissory transactions, which, over and above the sum notes, an affidavit was held sufficient which of $3,000 contributed by the plaintiff as aforeaverred, inter alia, that the maker was in- said, were borne wholly and exclusively by duced to accept the loan, sign the notes, and the defendant." It is further averred in the execute and deliver the assignment on the affidavit that defendant "contributed more faith of the representation made by the payee largely to the fund used in the purchase of that the loan should be paid out of the im- said stocks than did the plaintiff, and that mediate proceeds or profits derived from the his losses already aggregate much more than sale of umbrella tubes made, and not other- $3,000, the amount advanced by the plaintiff." wise, without which assurance and induce- The defendant alleges that by reason of ment the maker would not have accepted the the losses resulting from the sales of the loan, signed the notes, or executed the assign-stock purchased in the joint venture the three ment.

notes have been satisfied in full, and that there is nothing due the plaintiff thereon; "and that, until there is an accounting and a balance struck between him and the plaintiff, he is not indebted to the said plaintiff in the sum of $3,000, or in any other sum

for the mutual understanding and agreement he (the defendant) would not have signed or delivered the said notes to the said plaintiff."

We agree with the plaintiff's counsel that there is a "variety of statements made by the defendant in his two affidavits of defense"; and confusion naturally results as to what defense he really intends to rely upon. Several of the averments in the affidavits are whatever." Finally, it is averred "that but wholly without merit as a defense on the notes in suit, and will be so declared if presented on the trial of the cause. The affidavits are neither concise nor clear, and if the matters therein averred were submitted to a jury it would have great difficulty in arriving at a conclusion. There is sufficient, however, we think, to send the case to the jury, and it will be the duty of the trial judge to submit for the consideration of the jury any meritorious defense the defendant may present.

After admitting the due execution of the notes in suit and the receipt of the money thereon, the affidavits aver, inter alia, that at the time of and previous to the execution of the notes an oral partnership arrangement existed between the plaintiff and the defendant, and that it was engaged in the purchase and sale of certain stocks in the stock market. By the terms of this partnership or joint venture the parties were to contribute to a joint fund which was to be used by the defendant in purchasing stocks from time to time in his own name, the purchase being for the joint interests of both parties. Any profits arising, either from dividends from the stock purchased or from the sale of any of the stocks at a subsequent date, were to be divided between the parties, and "in the event of the investment proving a loss, involving wholly the amounts to be advanced by the plaintiff, he would release the defendant from all obligations assumed by defendant under and by virtue of the said three notes given by defendant to plaintiff." The three notes in suit were given by the defendant to the plaintiff to secure moneys used in the purchase of stock for the joint interest of the parties in pursuance of the partnership agreement. The defendant made certain purchases and sales of stock as provided by their agreement, and a schedule is attached to the affidavit and made part of it which exhibits the purchases and sales made by the

These and other allegations of the affidavits the defendant "avers to be true, and expects to be able to prove upon the trial of this cause." The allegations in the affidavits seem to bring the case within the rule of the cases we have cited above, and that the defendant has the right to show that while conceding the execution and delivery of the notes they were paid in the way agreed upon by the parties at the time they were executed. The action being between the original parties to the notes, they could make any agreement as to the manner of payment they thought fit, and, having made such an agreement, neither party can be permitted to violate it.

The plaintiff's counsel seems to think that, conceding this to have been a partnership transaction between the parties, the plaintiff can maintain an action for the balance due on an accounting between the parties. That question does not arise here, and we give no opinion upon it. This is an action on the notes, and the rule entered by the plaintiff in this case was "for judgment for want of a sufficient affidavit of defense on the above case," and not for judgment for a part of the plaintiff's claim under the act of July 15, 1897 (P. L. 276). The plaintiff did not take a rule, as he might have done, for want of a sufficient affidavit as to a specified and designated portion of the claim under the statute just named. Had he done so, he then might have contended that he was entitled to judgment for the specific sum which apparently seems to be due under the affidavit of defense. Having, however, taken a rule for judgment for the whole claim for want of a sufficient affidavit of defense, he was not in a position in the court below to ask that judgment be entered for part of his claim.

The judgment is reversed with a proce

Nicholas De Marzo was convicted of mur-given, the jury should have been told that, der, and appeals. Affirmed.

account of the trust. It was there held that appellant was without title or interest in the estate of Scott, and, as her only occasion for an account was to establish a claim against it for commissions, the duty was upon her, as administratrix of her deceased husband, to file his account as trustee, and, if such account should show a balance in his favor for commissions or otherwise, she would be in a position to call upon the present trustee to pay. She thereupon filed an account, which showed a balance due the trust of $12,907.24, exclusive of commissions claimed. At the audit accountant was surcharged with interest in the sum of $4,812.44, making a debit balance of $17,719.68. From this the

back in the afternoon, when he had another, death trustee under certain deeds of trust interview with his wife, similar in charac- made by Freeman Scott, deceased, to file an ter to the first. At the end of this interview, when the sister had just stepped out of the door, he coolly took the revolver out of his pocket and shot his wife. He then went back to his own house and put the revolver in the pocket of another coat. He was soon arrested, and his actions from that time until he reached the county jail were that of a person who knew full well what he had done and why he did it. There was not the slightest indication of a passionate outburst of any kind in his conduct, either at the morning interview, or at the afternoon interview, or immediately before or after the shooting, or from that time until he was placed in jail." The instruction given was all that the facts developed at the trial called for. The appel-auditor deducted $3,234 for expenses of audit, lant, however, had the advantage, in the answers to special requests for charge, of full and admittedly accurate instructions on the want of mental control.

The judgment of the court is affirmed, and the record is remitted to the court of oyer and terminer of Lackawanna county, that the judgment may be carried into execution according to law.

(223 Pa. 526)

March 1,

In re SCOTT'S ESTATE. Appeal of COCHRAN. (Supreme Court of Pennsylvania. 1909.) TRUSTS (§ 319*)-RIGHT TO COMMISSIONS-INSOLVENCY OF TRUSTEE.

attorney's fees, etc., and $7,593.38 commissions due accountant, together aggregating $10,827.38. The balance thus ascertained to be due the estate was $6,892.30, which the auditor awarded to the substituted trustee. The Guarantee Trust & Safe Deposit Company claimed to have the amount allowed by way of commissions specifically awarded to it, on the ground that Cochran in his lifetime, in writing, had assigned them to the company. Inasmuch as the account showed indebtedness due from Cochran, the trustee, to the estate, in excess of the commissions, the auditor very properly refused the demand, and applied the commission as a credit upon the account. Cochran for years before his death had been an insolvent. That he was permitted to act as trustee was due doubtless to the fact that the Guarantee Trust & Safe Deposit Company was his surety, and the further fact that, by arrangement with him and this company after his insolvency occurred, all moneys due the trust estate were paid by the parties directly to the company; the trustee himself keeping no separate account. The estate being thus managed, at Cochran's death the trust company had in its own hands whatever remainAppeal from Court of Common Pleas, Phil-ed of the trust fund, and as surety was liable adelphia County.

The widow and administratrix of an insolvent trustee filed an account, showing that the trustee was indebted to the estate for a large sum, which his surety was compelled to pay. The trustee had assigned his commissions to the surety. Held, that the widow and administratrix had no right to demand payment of the commissions from the substituted trustee, which commissions had been assigned to the surety, and which the surety had not paid over to such substituted trustee.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 319.*]

In the matter of the estate of Freeman Scott, deceased. From a decree dismissing exceptions to auditor's report, Esther H. Cochran, administratrix, appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Charles Hunsicker and Jos. W. Hunsicker, for appellant. John G. Johnson and Joseph H. Taulane, for appellee.

STEWART, J. In a former proceeding instituted by this appellant, in which there was an appeal (202 Pa. 389, 51 Atl. 1023), the effort was to require the Guarantee Trust & Safe Deposit Company, the surety of appellant's husband, who had been until his

as well for whatever deficit there might be.

Upon the final confirmation of the auditor's report, the trust company paid over to the substituted trustee the balance awarded, retaining in its own hands, however, the amount allowed Cochran as commissions.

The present contention arises on the first account of the substituted trustee. The account shows a large balance for distribution. Appellant first excepted to confirmation on the ground that accountant had not charged himself with the commissions allowed her on her acccount as administratrix of Cochran, and which she averred she had never received. She asked that the accountant be surcharged with the amount, and, failing in this, that she be awarded, out of the fund for distribution, an amount equal to the commis