Schoneman v. Fegley

• Decision Date: 03 April 1848
• Parties: SCHONEMAN <I>v.</I> FEGLEY.
• Court: Pennsylvania Supreme Court

7 Pa. 433

SCHONEMAN v. FEGLEY.

Supreme Court of Pennsylvania.

March 22, 1848.

April 3, 1848.

March 22.

IN error from the Common Pleas of Northampton.

Jones and Porter, for plaintiffs in error.—There was no new cause of action introduced by the proposed amendment, but merely a count on the original consideration: Caldwell v. Remington, 2 Whart. 132; Cunningham v. Day, 2 Serg. & Rawle, 1; Yohe v. Robertson, 2 Whart. 155; 4 Barr, 242; 5 Barr, 113; 6 Whart. 483. As to the protest, they cited Jenks v. Doylestown, 4 Watts & Serg. 510; Nichols v. Webb, 8 Wheat. 337; Stewart v. Allison, 6 Serg. & Rawle, 324; Etting v. Schuylkill Bank, 2 Barr, 357. The process being served on Fegley alone, his promise was sufficient to entitle us to a recovery: McLughan v. Bovard, 4 Watts, 308; Wells v. Masterman, 2 Esp. 731.

Maxwell and Brown, contrà.—The original count was on an endorsement, and the change of action to the original consideration is entire: Tryon v. Miller, 1 Whart. 11; Reitzel v. Franklin, 5 Watts & Serg. 33; Winder v. Northampton, 2 Barr, 446. In 4 Barr, the original count was against the drawers: 3 Wash. C. C. R. 396. Coryell was a non-resident, and hence within the rule relating to commissions, and not that as to going witnesses. Besides, his testimony has been taken under a commission. The protest was not offered after Coryell's testimony, but as independent evidence: Fitler v. Morris, 6 Whart. 406; Etting v. Schuylkill Bank, ut sup.; Mullen v. Morris, 2 Barr, 85. Notice of dishonour is absolutely necessary; and not having been given, the parties were discharged, and the promise after dissolution cannot affect the other partner's rights: 8 Serg. & Rawle, 438; 16 Serg. & Rawle, 161; 8 Watts, 401; 16 Johns. 152; 11 Johns. 180; 12 Johns. 423; 1 Cow. 397.

April 3. BELL, J.

The narr. originally filed is framed on the promissory note endorsed by the defendants to the plaintiffs, in payment of goods sold by the latter to the former. Under this declaration the cause was arbitrated, and an award made in favour of the plaintiffs, from which the defendants appealed. On the trial, the court below refused to permit the plaintiffs to amend by adding a count for goods sold and delivered. In this there was error committed. Under the act of 1806, the courts of this state have properly manifested great liberality in permitting amendments of the pleadings in order to reach the merits of the case, the only restriction imposed upon a plaintiff being, that he shall not introduce an entirely new cause of action. Thus, in Tryon v. Miller, 1 Whart. 11, where the plaintiff declared in trover for a bond, after arbitration and award for plaintiff, from which defendant appealed, it was held the original narr. could not be withdrawn and replaced by another, counting on the conversion of certain instruments not under seal, because this would be to charge the defendant upon a totally new ground. To the same effect, and for the same reason, is Reitzel v. Franklin, 5 Watts & Serg. 33, where the plaintiff recovered, before arbitrators, for work and labour; and it was deemed error to permit, after appeal, the addition of a new count on a promissory note drawn by the defendant in favour of the plaintiff and another. Of this class is, also, Winder v. The Northampton Bank, 2 Barr, 446, where the first declaration was for a deceit, and, after award and appeal, it was determined the count in trover could not be added, for this was to be sustained by different evidence and on different principles. But in Cunningham v. Day, 2 Serg. & Rawle, 1, which was assumpsit for money had and received, the plaintiff was permitted, on the trial, to introduce new counts upon an exchange of horses, that being the original transaction between the parties. The court said the plaintiff shall not be permitted to introduce an entirely new cause of action under pretence of amendment. Having declared for slander, he shall not afterwards count for trover, or malicious prosecution, or libel. But if he adheres to the original cause of action, he may add a count substantially different from the first declaration; and whether he so adheres, the court can always judge. I have quoted these remarks because, as will presently be seen, they are precisely applicable to the case in hand. In Caldwell v. Remington, 2 Whart. 132, the plaintiff originally declared in indebitatus assumpsit, with the common money counts, and afterwards he was permitted to add four additional counts; the first being on an alleged guaranty of a check cashed by the plaintiff; and the second, third, and fourth, on the defendant's endorsement of the same check. But the very point in controversy was decided in Yohe v. Robertson, 2 Whart. 155, where the first narr. was on a promissory note. On the trial, and after the counsel had concluded their addresses to the jury the plaintiff had leave to amend by filing new counts for goods sold and delivered, and money lent, as these may tend to remove an objection of informality to the recovery of the plaintiff, and were thus introductive of a new cause of action. If it be objected that in that case there was not, as there is here, an award appealed from by the defendant; the answer is, that can make no difference so long as there is no attempt to introduce new matter altogether distinct from the transaction originally set forth. Thus, in an action quare clausum fregit, et de bonis, &c., after award, the court below refused permission to introduce a count for taking and carrying away the goods; and for this error the judgment was reversed; for it was said that, though, in legal contemplation, the breach of the close was the principal injury, the asportation of the goods was, in truth, the substantial cause of action; Insurance Company v. Spang, 5 Barr, 113. Now, it is very certain that, if the promissory note in question was not received in absolute satisfaction, but only as a conditional discharge of the original demand for goods sold, the plaintiffs may recur to the original contract which was the consideration of the endorsement, and in proof of it give the note and endorsement in evidence, (Chitty on Bills, 593 et seq.; Burdick v. Green, 18 Johns. 14; Forney v. Benedict, 5 Barr, 228,) unless, indeed, they have been guilty of such laches in respect of demand and notice of non-payment, as will, in law, discharge the original indebtedness, (McLughan v. Bovard, 4 Watts, 308; Smith v. Wilson, Andr. 187,) a state of things the court had no right to anticipate on a preliminary motion to amend the pleadings. This, of itself, is sufficient to show that the original transaction which caused the negotiation of the note is not to be viewed as a distinct and independent cause of action, but as the...