Good Intent Company v. Hartzell

• Decision Date: 01 October 1853
• Citation: 22 Pa. 277
• Parties: Good Intent Company versus Hartzell.
• Court: Pennsylvania Supreme Court

22 Pa. 277

Good Intent Company versus Hartzell.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Fayette county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Howell and Loomis, for plaintiffs in error.—It was inter alia alleged, that the original cause of action cannot be changed: 5 Barr 256; 2 Rawle 337; 4 W. & Ser. 277; 1 Whar. 287; 4 Harris 162. The declaration first filed was upon the agreement of July, 1847, for tolls at the rate of $10,500 per annum, to continue till 1st May, 1848, and for the payment of tolls quarterly; and the claim was for the quarters ending on 1st April, 1851, $384.97½ and for the quarter ending on 1st July, 1851, $984.37½ and that the Good Intent Stage Company were liable for only $5250, and that they had paid at that rate.

In the amended declaration the plaintiffs declare on the agreement

of 1845, between the commissioner and the two companies, for the payment of tolls at the rate of $11,000 for a year, payable quarterly — to be paid jointly, and payable quarterly in January, April, and July. It was intimated that these two contracts were not identical; that the agreement of 1845 was abrogated by the agreement of 1847; that the amount of tolls to be paid was reduced by the falling off of the travel, yet that the verdict was rendered for tolls at the rate of $11,000 a year.

It was contended that the Act of 4th May, 1852, did not authorize a new party to be added to the suit — that the Act only authorizes the Courts to permit amendments, "by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party."

It was, inter alia, further said that there was no issue when the cause was tried — that the second declaration was a withdrawal of the first — and to it there was no plea: 5 Watts 70; 5 Wh. 186; 9 Barr 139. The defendants did not tacitly agree to waive matter of form, as they were protesting against the proceeding. The case of Sauerman v. Weckerly, 17 Ser. & R. 116, said not to be applicable.

It was said that the 13th section of the Act of 1845, prohibits pleas in abatement only when difficulty arises in ascertaining the names of all the persons who are liable for tolls; and that the 16th section of the Act, which gave the commissioner power to make commutation of the tolls, does not contain any prohibition of such a plea. That the commissioner is left to proceed on his contract, under the customary rules of law.

By the agreement of 3d July, 1847, the tolls were to be paid at the rate of $10,500 per annum, from the 1st July, 1847, to the 1st May, 1848, and to be paid quarterly. It was said that this was not an agreement for one year or from year to year. It was submitted, that though the defendants, for some time after the expiration of that period, continued to pay at the said rate, that there was nothing to prevent them, at the end of any quarter, from giving notice and refusing to pay according to it. The 15th and 16th sections of the Act of 1845 were referred to. It was said that the contract of 1847 was a new agreement, for a specified period, and that when it expired by its own limitation, the Act of 1845 prescribed the remedy.

Kaine and Veech, for defendants in error.—The defendants plead to the original declaration; and if when the amendment was allowed and filed they did not withdraw or alter their pleas, they were pleas to the amendment under the Act of 1806: 11 Ser. & R. 126; 17 Ser. & R. 117. The cause of action was the same. A plea in abatement is prohibited in such a case as this by the Act of 1845; such a plea is too late after a plea in bar. The demurrer was in substance the same as the plea in abatement. The Court gave judgment of respondeat ouster. It should have been a judgment quod recuperet: 4 Rawle 83, Bauer v. Roth. The matter alleged was no cause of demurrer and could be taken advantage of, if at all, only by a plea in abatement, (which was prohibited by the Act), unless it appear on the face of the declaration or some other pleading of the plaintiff, that the party omitted is still living, as well as that he jointly contracted; in which case the defendant may demur: 1 Chitty's Pl. 30; 1 Bos. & Pul. 73; 1 Saunders 291; Id. 422.

It was alleged that the plaintiff had not declared on a written contract, but only on a parol agreement made with Wm. Hopkins on 5th September, 1845, which was proved by his testimony in connection with the writing.

The opinion of the Court was delivered by BLACK, C. J.

By the 16th section of the act of 1845, relative to the Cumberland Road, the commissioner of the road is authorized to contract with the owners of a line of coaches for tolls in a gross sum, by the month, quarter, or year. Two stage companies were running over the road in 1845, and for some years afterwards, namely, the Good Intent Stage Company and the National Road Stage Company. They jointly contracted with the commissioner for leave to run all their coaches through all the gates in Pennsylvania, at the gross sum of $11,000 per annum, payable quarterly. This contract was reduced to writing, and signed by the commissioner and by one member of each company, on the 5th of September, 1845. Another paper was signed by the commissioner alone, and dated July 3, 1847, by which the rate of tolls was fixed at $10,500 per annum from the 1st July to the 1st May, 1848. No other contract was made, and both the stage companies continued to run without paying toll at the gates, but paying up to 1850, according to the last mentioned paper. In 1850 they ceased to pay regularly according to the agreement, but did not pay or offer to pay at the gates. Being in default about $11,000, the gates were closed upon them in 1851, and this suit brought to recover the sum due to the road. The defendants below now come into this Court, averring that the Court of Common Pleas committed twelve fatal errors in the trial of the cause. Though some of these errors are not specified according to the rule of September, 1852, we will consider and decide upon all that are of any importance.

1. It is said that there was no plea, and the cause was therefore tried without being at issue. In point of fact there were pleas and issues regularly formed. The assertion to the contrary has no foundation except this: that, after the issue was made up, the plaintiffs, on leave given, added several new counts to their declaration. The pleadings need not be changed upon every amendment of the narr. Those which were in at first are held applicable to a new narr. subsequently filed, unless the defendant himself thinks proper to change his defence. But even if it were true that no plea at all had been pleaded by the defendant, it is not an objection which would avail either party in a court of error. It has long since been decided for reasons which have never been controverted, that a trial without a plea is a waiver of all matter of form, and a tacit agreement to put the cause on its merits.

2. The suit was brought to recover the tolls which became due in 1850 and 1851, and for which the two stage companies had made themselves jointly liable by their contract with the commissioner, dated 5th September, 1845. The declaration as first filed based their liability on the paper signed by the commissioner alone, and dated July 3, 1847. In the new counts the latter seems to have been treated as a mere temporary modification of the contract created by the former, and accordingly the first contract is counted upon. The defendants objected to this new narr., as introducing a new cause of action. But the objection cannot be sustained. The demand in both is for the...