Trego v. Lewis

• Decision Date: 20 May 1868
• Parties: Trego <I>et al. versus</I> Lewis.
• Court: Pennsylvania Supreme Court

58 Pa. 463

Trego et al. versus Lewis.

Supreme Court of Pennsylvania.

May 11, 1868.

May 20, 1868.

May 11th 1868.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. STRONG and READ, JJ., absent

Error to the Court of Common Pleas of Cumberland county: To May Term 1868, No. 23.

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W. H. Miller and Henderson & Hays, for plaintiffs in error, discussed the errors under these heads: —

1. The amendment of the declaration.

2. Admission and rejection of evidence.

3. Liability of Henderson.

4. Entering judgment for more than the damages laid.

On the first head they cited Root v. O'Neill, 12 Harris 326; Gardner v. Post, 7 Wright 19; Farmers' and M. Bank v. Israel, 6 S. & R. 293; Coxe v. Tilghman, 1 Whart. 287; Yost v. Eby, 11 Harris 331; Wright v. Hart, 8 Wright 454; Smith v. Smith, 9 Id. 403; Steffy v. Carpenter, 1 Id. 44.

On the second head, they cited: Evidence admitted, Schoneman v. Fegeley, 7 Barr 433; Rowan v. Rowan, 5 Casey 181; Porter v. Wilson, 1 Harris 641, 1 Greenlf. on Ev. § 174, 177; Hauberger v. Root, 6 W. & S. 435; Johnson v. Warden, 3 Watts 101; Com. v. Eberle, 3 S. & R. 9; Harris v. Wilson, 7 Wendell 57; McClurg v. Willard, 5 Watts 275; Hannay v. Stewart, 6 Id. 487; Switland v. Holgate, 8 Id. 385; Ingham v. Crary, 1 Penna. Rep 389; Sheafer v. Kreitzer, 6 Binn. 432; Nash v. Gilkeson, 5 S. & R. 352.

On the third head they cited McCready v. Freedly, 3 Rawle 251; Evans v. Mengel, 6 Watts 72; Jones v. Mengel, 1 Barr 68.

On the fourth head, Siltzell v. Michael, 3 W. & S. 329; Lantz v. Frey, 7 Harris 366.

A. B. Sharpe and W. M. Penrose, for defendant in error, cited, as to amendment, 1 Chitty's Pl. 258, note k, 267, 268, 270; Mostyn v. Fabrigas, Cowper 176; Shoenberger v. Hackman, 1 Wright 92; Roop v. Roop, 11 Casey 59; Ward v. Ward, Id., in note; Wampler v. Shissler, 1 W. & S. 365; Miller v. Weeks, 10 Harris 89; Sauerman v. Weckerly, 17 S. & R. 116; Ins. Co. v. Seitz, 4 W. & S. 273; Smith v. Latour, 6 Harris 243; Chaffee v. Sangston, 10 Watts 265.

As to the evidence, Welsh v. Speakman, 8 W. & S. 260; Wolle v. Brown, 4 Whart. 367; Allen v. Rostain, 11 S. & R. 372; Wood v. Connell, 2 Whart. 553; Anderson v. Levan, 1 W. & S. 338; 1 Greenlf. Ev., § 177; Hauberger v. Root, Shollenberger v. Seldenridge, Comm'th. v. Eberle, supra; Spence v. Spence, 4 Watts 167; King v. Hardwick, 11 East 578; Butcher v. Green, Douglass 652; Bowers v. Sill, 13 Wright 65; Potter v. McCoy, 2 Casey 462; McIntyre v. Kennedy, 5 Jd. 448; Shaw v. Presb. Church, 3 Wright 226.

Liability of Henderson: Hastings v. Eckley, 8 Barr 194; Newbold v. Shelton, 4 Rawle 195; Martin v. Hammon, 8 Barr 272; Dougherty v. Stephenson, 8 Harris 210; McCready v. Freedly, 3 Rawle 251.

Entering judgment: Gratz v. Phillips, 5 Binn. 572; Prevost v. Nicholls, 4 Yeates 479; Furry v. Stone, 2 Dall. 184; s. c., 1 Yeates 186; School in L. Dublin v. Paul, 1 Binn. 60; Paul v. Harden, 9 S. & R. 23; Spackman v. Byers, 6 Id. 385; Wampler v. Shissler, 1 W. & S. 365; Peddle v. Hollinshead, 9 S. & R. 277; Jamieson v. Pomeroy, 9 Barr 230; Miller v. Weeks, 10 Harris 89; Ward v. Stevenson, 3 Id. 21; Hughes v. Hughes, 4 P. F. Smith 244; Graham v. Bickham, 4 Dall. 149; Robeson v. Whitesides, 16 S. & R. 320; Burr v. Todd, 5 Wright 206; Chitty on Cont. 768; Jarman v. Coape, 13 East 393; 2 Pars. on Cont. 158; Shoenberger v. Harkman, supra; Keen v. Hopkins, 12 Wright 445; Robinson v. English, 10 Casey 324; Smith v. Latour, 6 Harris 243; Stuart v. Blum, 4 Casey 225; Hobensack v. Hallman, 5 Harris 154; Sergeant v. Ewing, 6 Casey 75.

The opinion of the court was delivered, May 20th 1868, by AGNEW, J.

Many errors have been assigned in this case, but we discover none possessing any weight. As the plaintiff in error has discussed them in classes, we may follow the same path. The amendment of the declaration permitting the promises to be laid as made in Virginia, adding the proper videlicet to bring the action within the jurisdiction of the court, was not erroneous. The action was brought to recover the price of the hogs purchased in Virginia. All the evidence and the history of the case show conclusively that Lewis, who was a farmer living in Frederick county, Virginia, had his transactions with the defendants there. There is not even a pretence that the cause of action arose in Pennsylvania. Now that the omission of the pleader to state the formal averment that the contract was made in Virginia, should close the door against an amendment of this merest form, would be a stigma upon the administration of justice. Undoubtedly the court will never permit a party to shift his ground or enlarge its surface by introducing an entirely new and different cause of action, especially when by reason of the Statute of Limitations, or an award of arbitrators, or for some good reason, it would work an injury to the opposite party. But amendments which tend only to advance the interests of justice are not only proper, but necessary, and should always be allowed. In this connection we will also dispose of the last error alleged in entering a judgment on a verdict for a sum greater than the damages laid in the declaration. The declaration was clearly amendable in the court below, and the entry of judgment was merely an oversight. The action was brought in 1859, and in consequence of the suspension of intercourse between Virginia and Pennsylvania, by the war of rebellion, was not tried until 1867. The damages were laid in $1000, and the verdict was recovered for $1132.84, the excess being a sum much below the interest which had accrued on the demand in the mean time. The sum recovered, exclusive of the interest, therefore, was less than the damages laid in the declaration at the time it was filed. In cases where even jurisdiction depends on the sum demanded, as in an appeal from a justice of the peace, the jurisdiction is not ousted by the recovery of a greater sum where the excess is merely the interest accrued after suit brought. The plaintiff had the right to amend in the court below, and this being the case we will permit it to be done here. The authorities cited by the defendant in error clearly justify this exercise of our discretion. Some dicta have been cited that the court will reverse for this cause. Where the justice of the case demands it, we might perhaps decline to permit it after the party had slipped his opportunity. But the legislature has led the way to the making of amendments of the most vital character, altering names Christian and surname, changing and adding names of parties, and even striking out parties where too many have been included. It becomes us to keep pace with legislative reform instead of lagging in its rear. Nothing is a matter of more form than the sum inserted at the conclusion of a narr. as the damages suffered. We therefore will allow the amendment which would have been of course in the court below.

We think the court below was right in receiving in evidence the letters and acts of Trego, one of the defendants. It is not always in the power of the party to give direct evidence of the joint acts of parties charged jointly. He may follow each by his separate steps, until he is able to bring them together, and show that they are in company with each other, and acting concurrently. Often the most complete chain of evidence binding parties together, is forged of separate links, and to refuse to weld them together by means of proof would frustrate justice. The rejection of the suit brought on the note endorsed by Trego did the defendants no injury. It was not alleged that this evidence tended to show payment, and the...