Dissenting Opinion by
Smith, J.The essential matters of defense alleged in the affidavit, briefly summarized, are the following: The defendant invested $500 in the stock of the Hamilton Furniture Company, upon a guaranty by Clark, who owned substantially the remainder, of indemnity should the investment result in a loss. The company afterward went into bankruptcy. Its assets were purchased under an arrangement wherebj- they were to be converted into cash, certain debts paid from the proceeds, and any surplus remaining paid to Clark. In carrying out this arrangement, the plaintiff, Myers, acted as trustee for the parties interested. Pending the conversion into cash, and before the sufficiency of the assets to meet the preferred claims was ascertained, Clark, through Myers, repaid to the defendant the $500 invested in the stock. Myers also advanced to the de*318fendant the further sum of $846.50 due him for wages as an employee of the furniture company; though as to this item no defense is made beyond a credit admitted by the plaintiff. To provide against a failure to pay the preferred debts from the assets, the due bill in suit was given, with a pledge of stock as collateral. The instrument was made payable in eighteen months, a period deemed sufficient to complete the conversion of the assets into cash. Should this fund be enough to meet the preferred debts, the due bill was to be surrendered.
Were this all that is alleged in the affidavit, it would present no defense. Up to this point, the case corresponds, in substance, to that of Com. Title Ins. Co. v. Folz, referred to in the opinion of the court. Following this, however, in the present case, a feature of the defense appears which is totally absent in the case of Com. Title Ins. Co. v. Folz. The affidavit further alleges that the assets of the furniture company proved sufficient to pay the preferred debts, and to yield a surplus of more than $15,000, which had been paid, or was to be paid to Clark ; and that the due bill, therefore, pursuant to the agreement under which it was given, should be surrendered.
In strictness, this is not an allegation of a parol agreement contradicting or qualifying a written contract. It is, in effect, an allegation that payment has actually been made in accordance with a parol agreement, and that, by such payment, the written contract is discharged, and the obligation arising from it at an end. According to the affidavit, it was not an indebtedness contracted by the defendant, but a payment to Mm, provisionally, of a debt due him from Clark, the party beneficially interested in the premises, that formed the consideration of the instrument in suit; this payment being made subject to recall, if necessary, to meet the preferred debts mentioned, should the assets of the furniture company prove insufficient. The affidavit alleges that these debts have been fully paid from the assets of the furniture company; hence, that the payment to him, provisionally made, has become absolute, and that the due bill no longer represents any obligation to be performed by him. This is the plain meaning of the affidavit.
It' is unnecessary to consider the representations, promises and guaranty alleged to have been made by Clark, since , it *319clearly appears, from the affidavit, that he recognized his liability as guarantor, and consented to the payment of $500 to the defendant in its discharge, subject to recall should the insufficiency of the assets of the furniture company make it necessary. As to the person by whom the agreement for the surrender of the due bill was made, it is obvious that when two persons are described as contracting parties, and an agreement is alleged, this necessarily implies that such agreement was made between the contracting parties, and that any promise alleged, relative to the subject-matter of the contract, was made by one or the other of the contracting parties. Hence a promise for the benefit of the defendant, in the transaction described in the affidavit, must necessarily have been made by Myers, the other contracting party, even if this is not directly averred. As to the authority of Myers in the premises, since he had authority to pay the money to the defendant, and take, at his discretion, a security for its return if required, there is an evident presumption that he had like authority to provide, at his discretion, for the surrender of the security upon the happening of a contemplated event, viz: the payment of the preferred debts from the assets of the furniture company. Indeed, such a promise was scarcely necessary, assuming, as we must, the truth of the matters set forth; since the money paid to the defendant was really due him, and the only consideration for the due bill was the possible need of the money thus paid to meet the preferred debts should the assets prove insufficient for that purpose.
I do not regard the case as one of the class in which it must appear that the parol agreement induced the execution of the written one. It belongs rather to the class in which the enforcement of the written contract, in violation of the parol agreement, would be a fraud on the defendant. Under the circumstances set forth in the affidavit, the enforcement of the due bill would be a manifest fraud on the defendant. While recovery would not be barred by a parol agreement to the contrary, without more, the actual discharge of the obligation under the terms of such agreement, and in the manner therein provided, as described in the affidavit, would be a full defense.
The defense thus set up is of an equitable nature. Under our system of enforcing equitable rights in suits at law, an *320equitable defense may be maintained without resort to a court of equity. Under the plea of payment, with leave, etc., and notice of special matter pursuant to rule of court, the defendant may give in evidence any equitable defense; and, if he can make out a case on which he would be entitled to relief in equity,, he will be entitled to a verdict. It is needless to cite authority for principles so long established in our jurisprudence.
As to sufficiency with respect to form and phraseology: “ It is not necessary that an affidavit of defense should be drawn with so much nicety that no critical skill can suggest an objection ; but if it sets forth substantially a good defense it should be supported : ” Thompson v. Clark, 56 Pa. 33. In substance the affidavit before us sets forth a good defense, and in form it exhibits no material defect. It should therefore have been sustained.
I would reverse the judgment and award a procedendo.