Pulling v. Yeager

• Decision Date: 21 June 1930
• Docket Number: 100
• Citation: 301 Pa. 7,151 A. 674
• Parties: Pulling v. Yeager, Appellant
• Court: Pennsylvania Supreme Court

151 A. 674

301 Pa. 7

Pulling v. Yeager, Appellant

No. 100

Supreme Court of Pennsylvania

June 21, 1930

Argued May 12, 1930

Appeal, No. 100, Jan. T., 1930, by defendant, from judgment of C.P. Erie Co., Sept. T., 1926, No. 277, on verdict for plaintiff, in case of W. Grant Pulling and S. E. Austin copartners, doing business as United Motors Transport Co. to use of W. Grant Pulling, doing business as United Motors Transport Co., and W. Grant Pulling, individually, doing business as United Motors Transport Co. v. Yeager & Sons. Affirmed.

Assumpsit in foreign attachment. Before HIRT, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $2,892.78. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment of the court below is affirmed.

Charles C. Eaton, with him Ritchie T. Marsh and Homer T. Eaton, for appellant. -- Where an individual as plaintiff brings an action in assumpsit by foreign attachment and the affidavit of cause of action and all pleadings aver and set forth the individual as the plaintiff, the pleadings may not be amended at the trial by substituting a partnership of which plaintiff was formerly a member, as the legal plaintiff, to the use of the individual plaintiff instituting the suit: White Co v. Automobile Co., 43 Pa.Super. 532; Clarke v. R.R., 136 Pa. 408; Wilson v. Wallace, 8 S. & R. 53; Riley v. Ins. Co., 12 Pa.Super. 561; Garman v. Glass, 197 Pa. 101.

Where an individual as plaintiff brings an action in assumpsit by foreign attachment and plaintiff's statement and subsequent pleadings all allege a right to recover on individual contracts made by plaintiff with defendant, plaintiff may not on the trial of the case amend the pleadings by substituting the partnership contract with the defendant for one of the individual contracts declared upon, notwithstanding plaintiff had attached to his original statement a copy of the partnership contract: Com. v. Baxter, 235 Pa. 179; Rochester Boro. v. Kennedy, 229 Pa. 251; Holmes v. Ins. Co., 142 F. 863; Hodges v. McGovern, 230 Pa. 368; Garman v. Glass, 197 Pa. 101; White Co. v. Automobile Co., 43 Pa.Super. 532; National Bank v. Block Co., 233 Pa. 421.

The partnership, one distinct and legal entity, was suing defendant on its contract with him, and Pulling, individually, another distinct entity, was suing defendant on two separate individual contracts made with defendant. The plaintiffs were separate and distinct and the contracts were separate and distinct, notwithstanding W. Grant Pulling, the individual joint plaintiff, was named as use-plaintiff: Garman v. Glass, 197 Pa. 101; Mosgrove v. Golden, 101 Pa. 605; Horbach v. Huey, 4 Watts 455; Clarke v. R.R., 136 Pa. 408; Bogle v. Kreitzer, 46 Pa. 465; Seip v. Drach, 14 Pa. 352.

Henry C. Baur, for appellee. -- The averments were proper: Patton v. Ry., 96 Pa. 169; Farmers & Mechanics Bank v. Yarnall, 7 Del. Co. 221; Gotshell v. Langdon, 16 Pa.Super. 158; Gilmer's Est. v. DeCaro, 29 Pa. C.C.R. 625; Fidler v. Hershey, 90 Pa. 363; Booth v. Dorsey, 202 Pa. 381; Downey v. Garard, 24 Pa. 52; Shaffer v. Eichert, 132 Pa. 285; Kaufmann v. Landau, 93 Pa.Super. 457; Howes v. Scott, 224 Pa. 7; Richter v. Cummings, 60 Pa. 441; Reber v. Wright, 68 Pa. 471; Jackson's Exrs. v. Lloyd, 44 Pa. 82; Clement v. Com., 95 Pa. 107.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SIMPSON:

On August 6, 1925, W. Grant Pulling and S. E. Austin, doing business as the United Motors Transport Company, entered into a written contract with defendant, to excavate and remove dirt from a specified property. The contract was signed by "United Motors Transport Co., W. Grant Pulling, S. E. Austin," and by defendant. After the work had been partially done, Austin sold out his interest in the firm and its business, including this contract, to Pulling, who thereafter carried on the business under the same trade name. Plaintiff alleged that he excavated and removed under this contract 23,100 cubic yards of earth. While the work was being done, a newly-erected rear wall fell, caused, as defendant averred, by plaintiff's improper performance of his work. The latter denied this, whereupon a supplemental written agreement was made by which it was provided that plaintiff should remove the debris thus caused, and defendant should replace the wall, without prejudice to the rights of either on final accounting. This agreement was signed by defendant, and by "United Motors Transport Company, W. G. Pulling," and the work done under it admittedly cost plaintiff $203.30. The latter claimed also the sum of $570, for the alleged removal of certain dirt (not included in the first written contract), by virtue of a later oral contract made by defendant with him, while trading as the United Motors Transport Company. Defendant denied this, and averred the dirt thus removed was part of that excavated under the written contract, and that all the dirt excavated and removed aggregated only "about 20,500 cubic yards."

Not having been paid, plaintiff issued a writ of foreign attachment against defendant, in the name of "W. Grant Pulling, doing business as United Motors Transport Company." The affidavit of cause of action, and the statement of claim, both in its caption and body, were also so drawn; and copies of the two written contracts were attached to each of them. Plaintiff claimed to recover on them, and on the alleged oral contract. Prior to the trial, defendant did not ask the court to decide, as a matter of law, whether it was proper to bring but one suit on the three contracts, in the name of "W. Grant Pulling, doing business as the United Motors Transport Company," but filed an affidavit of defense and counterclaim, to which plaintiff replied, and upon the issues thus made the case went to trial.

When plaintiff offered the two written contracts in evidence, their admission was objected to upon the ground that the suit was in Pulling's name alone, whereas each contract was with both Pulling and Austin. This was, of course, not true as to the second agreement, which was executed by Pulling only. The trial judge allowed the record to be amended so as to make the plaintiffs: "W. Grant Pulling and S. E. Austin, copartners doing business as United Motors Transport Company, to the use of W. Grant Pulling, doing business as United Motors Transport Company, and W. Grant Pulling, individually, doing business as United Motors Transport Company," and then overruled defendant's objection. Motions for a nonsuit and for binding instructions for defendant were both subsequently overruled. The jury rendered a verdict for plaintiff for $2,892.78, and specifically found that "plaintiff was not guilty of falling of wall." As already stated, this special finding entitled plaintiff to recover, under the second agreement, the sum of $203.30 for removing the debris caused by its fall. The verdict further established the fact, as defendant claimed, that there had been no oral contract, and hence any trial error touching it became harmless, and does not furnish a ground for reversal: O'Bara v. Bielecka, 279 Pa. 307; Schwartz v. Whelan, 295 Pa. 425. That it did so decide is evident, since plaintiff claimed $3,860 for excavation and removal of dirt, under the first written contract, and defendant admitted plaintiff was entitled altogether to $2,300 for that character of work. The verdict, after deducting the $203.30, is for $2,689.48.

The point we are called upon to decide is, therefore, can defendant effectively object at the trial, for the first time, to Pulling suing in his and Austin's name to his,...