several items of additional work. The statement also contains itemized statements of the kinds and quantities of materials used for the extra work and the hours and dates of the additional labor required thereby, together with averments that the prices charged therefor were the usual and regular prices. It is, of course, possible to recover for extra work even under a contract containing a stipulation like the above; for the provision may be waived by the parties: Cramp v. Central Realty Co., 268 Pa. 23. When recovery is sought for extras it is necessary to aver either a "contract on the part of the defendant to pay for the extras in the line of work and materials" or else an averment "that the defendant requested the plaintiff to pay for extra work and materials," and, of course, an averment that the "so-called extras were not included in the contract" and that "the prices charged are reasonable and just or the usual and ordinary charges for such work and materials": Rosenblum v. Stolzenberg, 36 Pa. Super. Ct. R., 644. The instant statement does not allege a contract but it does aver defendant's requests; it avers clearly that the so-called extras were not included in the original written contract and it sets forth that the prices are the usual prices. It follows that it is a sufficient statement. True, it does not specifically allege that the written contract was waived. But unless such waiver is expressly made it rests upon an inference and an inference may not be pleaded; The pleader may not even plead the evidence by which his facts are to be proved: Practice Act of 1915, Section 5. If he relies upon a waiver of a written contract by the giving and taking of oral instructions it is sufficient that he plead the oral instructions, leaving the evidence thereof to be developed at the trial and the inference to be drawn by the jury. The answer to the contention that the statement does not contain the name of the officer of the defendant corporation who gave instructions is supplied by the Supreme Court in Cramp v. Central Realty Corporation, supra, as follows: "the averment that the waiver was agreed to by defendant is likewise sufficient upon demurrer and would be amply supported by proof to the effect that it was made by an officer of defendant or other person duly authorized to act." The statutory demurrer challenges the sufficiency of the statement in other particulars, but the questions thereby raised are not discussed in the brief nor set forth in the statement of questions to be decided. Under our recently revised rules (Rule VI: Section 3) this constitutes an abandonment of them. Now, March 3, 1924, the statutory demurrer is overruled and defendant will file an affidavit of defense within fifteen days after service of a copy of this order upon its counsel. SAMUELS v. DIEFENDERFER. Promissory Notes-Contemporaneous Parol AgreementParol Evidence-Fraud-Affidavit of Defense-Sufficiency. Where a person is induced by a contemporaneous parol promise to sign a promissory note, which he would not have signed except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note and prove the promise by parol evidence. In an action upon such note where defendant sets up, in his affidavit of defense, the promise and breach thereof; that plaintiff and defendant were stockholders in and executive officers of a corporation; that at the time of the execution and delivery of the note, plaintiff agreed that he would cause $300 to be advanced to defendant on plaintiff's endorsement; that defendant need not pay the $300 to plaintiff until after plaintiff had reimbursed and financed the corporation and until defendant was reimbursed $1500 for past services and for whatever services might still be rendered by defendant to the corporation; that defendant, after the execution of the note, never received the $1500 from the corporation nor any sum for other services; Held, That the affidavit of defense was sufficient to prevent judg ment. In the Court of Common Pleas of Lehigh County. No. 83 January Term, 1924. Irving Samuels vs. V. J. Diefenderfer. Rule for Judgment for Want of a Sufficient Affidavit of Defense. Rule Discharged. Henry B. Friedman, for Plaintiff and Rule. Iobst, J., February 18, 1924. In this case the plaintiff brought an action of assumpsit on a promissory note made by the defendant and delivered by him to the plaintiff for value. A copy of the note is attached to plaintiff's statement and made a part thereof. At maturity the note was duly presented by the plaintiff for payment, and payment thereof refused. This suit is now brought for the recovery of the amount of the note, to wit, the sum of Three Hundred ($300.00) Dollars with interest. To this statement of claim, the defendant filed an affidavit of defense in which he does not deny the execution of and delivery of the note in question to the plaintiff; neither does he deny that the note was given for value. The defendant however alleges a defense to the payment of the note, as follows: Paragraph 7: "Defendant alleges that the plaintiff agreed with the defendant that plaintiff would give to the defendant the sum of $300.00 provided defendant remain with the Victor Engineering Company in his capacity as manager and president. Paragraph 8: "Defendant informed the plaintiff at the time of the execution of the note in question that the Victor Engineering Company was indebted to the defendant in the sum of $1500.00 up to that time for salary and services." Paragraph 9: "Plaintiff agreed that he, the plaintiff, would cause the sum of $300.00 to be advanced to the defendant on the plaintiff's endorsement, and that the defendant need not pay the said sum of $300.00 back to the plaintiff until after the plaintiff has re-organized and financed the Victor Engineering Company, and until the defendant was reimbursed to the full extent of $1500.00 for his past services and for whatever services might be rendered by the defendant for the Victor Engineering Company." Paragraph 10: "Both plaintiff and the defendant were interested in the Victor Engineering Company both as executive officers thereof and as stockholders therein." Paragraph 11: "Plaintiff failed to re-finance the Victor Engineering Co., as plaintiff had promised." Paragraph 12: "Defendant never received said $1500.00 from the Victor Engineering Company for his services rendered nor for the services rendered by the defendant for said company after the time of the execution of the note in suit." Paragraph 13: "The said company is still indebted to the defendant to the full extent of the amount which was due at the time of the execution of the note, to the defendant." Paragraph 14: "The conditions on which the said note was executed have not been fulfilled, and therefore defendant claims the note is not payable from the defendant to the plaintiff the conditions being part of the consideration and the expressed conditions on which the note was executed." Upon motion of the plaintiff a rule was granted on the defendant to show cause why judgment should not be entered in favor of the plaintiff for want of a sufficient affidavit of defense. The question involved is, whether an affidavit of defense which alleges that the defendant was induced by a contemporaneous parol promise to sign a promissory note which he would not have signed, except for the promise, is a fraud upon his rights and whether he may set up the breach as a defense to the note, and prove the promise by parol evidence. The defendant alleges that the plaintiff and the defendant were stockholders in, and Executive Officers of the Victor Engineering Company, and that at the time of the execution and delivery of the note the plaintiff agreed that he would cause the sum of Three Hundred Dollars to be advanced to the defendant on the plaintiff's endorsement, and that the defendant need not pay the said sum of Three Hundred Dollars to the plaintiff until after the plaintiff had re-organized and financed the said Victor Engineering Company, and until the defendant was re-imbursed to the full extent of Fifteen Hundred Dollars, for his, defendant's, past services and for whatever services might be rendered by the defendant for the Victor Engineering Company. Defendant further alleges that he never received said sum of Fifteen Hundred Dollars from the Victor Engineering Company for his services rendered nor for the services rendered by the defendant for said company after the time of the execution of the note in suit. In the case of Gandy v. Weckerly, 220 Pa. 285, the Supreme Court held, "Where a person is induced by a contemporaneous parol promise to sign a promissory note which he would not have signed, except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note, and prove the promise by parol evidence. "In an action upon a promissory note for $1250 it ap peared that the plaintiff, the payee of the note, was the president of a corporation, of which the defendant, the maker of the note, was treasurer. The corporation being in want of funds, the defendant was requested by the plaintiff to give financial aid in the emergency. The defendant in an affidavit of defense averred that the plaintiff 'proposed to me that if I would loan to said company the sum of $1250, taking its note therefor at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1250, and take my note therefor, which note I would not be called upon to pay except out of and from the moneys to be repaid to me by said company in payment of its note held by me as aforesaid. He said he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid, but that if from any cause whatever the amount of the note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Relying upon this agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement on his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1250, taking its note therefor, purchased said stock, and gave to the plaintiff my note therefor, being the note in suit.' The defendant further averred the refusal of the company to pay its note to him, and that he was and had been at all times ready to surrender that note, and his stock for the note in suit, or to pay to plaintiff as soon as he himself was paid by the company, or to return the shares of stock for the note in suit. Held, that the affidavit of defense was sufficient to prevent judgment." In the case of Hotaling v. Fisher, 79 Sup. Ct., 103, "Where a judgment note was given in the purchase of an automobile and the petition averred that there was a |