dissenting:
I would reverse this judgment first of all because I think the utmost that can be said, in favor of the plaintiff’s right to have such a judgment, is that it is doubtful. It was not the purpose of the statute, which gives to a plaintiff a summary judgment and denies to a defendant the right to have his defense passed upon by a jury, that its provisions should apply to one whose claim is doubtful. In such case the doubt should be resolved in favor of /the defendant and the cause sent to a jury for trial.
But unless we are justified in closing our eyes to a number of authoritative utterances by the appellate courts of this state on this subject, I cannot see how it can be successfully argued that the present plaintiff has even a doubtful right to the summary judgment he has obtained.
I am quite willing to concede that it is difficult, perhaps *86impossible, to reconcile all of the many cases that have been decided, on the broad question of the admissibility of evidence of a contemporaneous parol agreement to modify, changa or contradict a written contract. I may even go further and agree that, since we now have, practically, courts of chancery armed with full equity powers, and since parties have been made competent witnesses, the time has come when the liberality with which our courts have heretofore viewed defenses, purely equitable in character, to common-law actions founded on written obligations, should be modified and restricted. But, unless we are to add to the confusion which may now exist on this question, this can be properly done only by overruling and expunging from the body of the law a number of decisions which at this moment must be regarded as authoritative. It is not our privilege nor is it within our power to do this.
When, therefore, a defendant, making the affidavit required by the statute, plants his defense on lines heretofore distinctly recognized in the utterances of the appellate courts of the state, it is difficult to see wherein there is any just ground for the application of the sudden and summary remedy provided to protect a plaintiff against “the law’s delay” in a case where no meritorious defense, in fact or law, is exhibited.
In the present case the affidavit, quoted in the majority opinion, distinctly declares that the parol agreement set up was the sole and only inducing cause that procured the defendant’s signature to the note in suit. It declares that under the terms of that agreement the debt, evidenced by the note, was to be paid only out of a particular fund — “ which note I would not be called upon to pay except out of and from the money to be repaid to me by said company in payment of its note held by me as aforesaid.” Such an averment seems to be sufficient to prevent judgment under the principle of Hill v. Ely, 5 S. & R. 363, Cake v. Pottsville Bank, 116 Pa. 264, and kindred cases.
It is true there is no averment in the affidavit that the terms of the parol inducing agreement set up wTere omitted from this writing by fraud, accident or mistake. There need not be. Such an agreement, if made, was never intended to be incorporated in the writing. It had fully served its only purpose when it procured the defendant’s signature to the writing. *87The use the plaintiff is now making of that writing is in flat violation of the parol promise which alone procured it, and such use has been repeatedly held to amount to a fraud on the defendant.
Following the doctrine declared in Greenawalt v. Kohne, 85 Pa. 369 ; Coal & Iron Co. v. Willing, 180 Pa. 165 ; Fidelity Co. v. Harder, 212 Pa. 96 : Wheately v. Niedich, 24 Pa. Superior Ct. 198 ; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Miller v. Henderson, 10 S. & R. 290; Building Association v. Hetzel, 103 Pa. 507, and many other cases, I am constrained to think the defendant’s affidavit was sufficient to entitle him to have his cause tried before a jury according to the usual course of the law.
Head and Beaver, JJ., join in this dissent.