Stewart and Others v. Kelly

• Decision Date: 19 May 1851
• Citation: 16 Pa. 160
• Parties: Stewart and Others <I>versus</I> Kelly.
• Court: Pennsylvania Supreme Court

Page 160

16 Pa. 160

Stewart and Others versus Kelly.

Supreme Court of Pennsylvania.

May 19, 1851.

ERROR to the Common Pleas of Lancaster county.

Stevens, for plaintiffs in error.—The evidence proved that all the hogs were at the place appointed for delivery, viz. Baltimore,

and were weighed, and that defendant was at the place and informed on the subject.

The amendment was allowable. The amended offered recited the same article of agreement as referred to in the original narr. The cause of action was the same: 8 Ser. & R. 444; 2 id. 1; 8 id. 287; 11 id. 101. So long as the plaintiff adheres to the contract on which the declaration is founded, an alteration of the grounds of recovery, or of the modes in which the defendant has violated the contract is admissible: 4 W. & Ser. 277; 11 Ser. & R. 101, Newlin v. Palmer; 15 Ser. & R. 83; 4 W. & Ser. 277; 7 Barr 433, Schoneman v. Fegley.

Franklin, with whom was Fordney, for defendant.—The amendment offered was inadmissible. The narr. filed set forth a contract executed; the amended narr. set forth an executory contract, thus introducing a new state of facts: 2 Rawle 337, Diehl v. McGlue.

The plaintiffs filed a declaration presenting the issue on the delivery of the hogs; then took depositions; and the defendant, relying on the plaintiff's inability to prove a delivery, took no steps for cross-examining the witnesses. The case being on trial, these depositions were read in evidence; and after that, the plaintiff offered to amend so as to change entirely the issue presented.

The opinion of the court was delivered May 19, by CHAMBERS, J.

This action is one of assumpsit on special contract, in writing of defendant, to pay the plaintiffs a certain price for a number of hogs to be delivered the defendant at Baltimore by a time appointed. The plaintiffs declared on an executed contract, alleging performance by delivery of the hogs, and claimed damages of the defendant for a refusal to pay. The evidence furnished by the plaintiffs proved that they had, at Baltimore, the hogs contracted for at the time appointed; and that they were then and there ready to deliver the same to Kelly, the defendant, who refused to accept the hogs, or pay for them, but there was no delivery. As the plaintiffs failed to prove a performed contract on their part as laid in the narr., the court below was right in saying that the plaintiffs could not recover.

The second error assigned is that the court refused to allow the plaintiffs to amend the pleadings by filing another narr., reciting the same agreement between the plaintiffs and defendant as was described in the first narr. as the foundation of the plaintiffs' action. In the narr. submitted as an amendment, the cause of action was substantially the same, being on the same contract, assigning the breach of the contract according to the facts, varying the allegation of delivery as contained in the first narr. to the allegation of being ready to deliver the hogs to the defendant, and his refusal to accept and pay for the same. The construction of the contract the injury to the plaintiffs, and the measure of damages were the same under one allegation as under the other.

Such an amendment was within the letter and spirit of the act of 21st March 1806, and it was mandatory to the court to permit it. This act, though susceptible of abuse, to be restrained by judicial discretion, is still a salutary and remedial one, which ought to receive a liberal construction.

There would rarely occur a more appropriate case for its application than the amendment here submitted, and one more within the policy of the law. The amendment proposed was in accordance with the principles well settled by this court in the application of this law...