Tyrrill v. Lamb

• Decision Date: 03 January 1881
• Citation: 96 Pa. 464
• Parties: Tyrrill <I>versus</I> Lamb.
• Court: Pennsylvania Supreme Court

96 Pa. 464

Tyrrill versus Lamb.

Supreme Court of Pennsylvania.

November 24, 1880.

January 3, 1881.

November 24th 1880.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent

Error to the Court of Common Pleas of Crawford county: Of October and November Term, 1880, No. 269.

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H. L. Richmond & Sons and J. B. Brawley, for plaintiffs in error.—If the plaintiff had the right under the Act of 1871, with the sanction of the court, to change his form of action, and, availing himself of this right, did change it, that fact had no effect, one way or the other, on the running of the statute. If the action is commenced within six years, it does not matter that its form was changed after the six years had run. The defendant cannot avail himself of that fact to plead the statute in bar of a recovery: Trego v. Lewis, 8 P. F. Smith 469; Steffy v. Carpenter, 1 Wright 43; Smith v. Bellows, 27 P. F. Smith 441; Tatham v. Ramey, 1 Norris 130; Wilhelm's Appeal, 29 P. F. Smith 121. The necessity for which the Act of 1871, provides a remedy was upon us. We could not recover in covenant because there was no condition of the case under which we could charge breach of covenant. Our right to the money we claimed depended not upon any stipulations contained in the articles of agreement, but upon what occurred subsequently, when Newell received the deed for the Harmony tract and paid over the last $10,000. Martin and Alfred Lamb had by settlement ascertained and determined the proportion each was to receive of the last $10,000. In the case at bar our only purpose in changing the form of action was that we might have a "decision of the case upon its merits." This we were apprehensive we could not reach in covenant.

C. Heydrick and Roger Sherman, for defendant in error.—The court had nothing whatever before it to show that such change was necessary to a proper decision of the cause upon its merits, and the costs were not paid up to the time of the amendment. We contend that payment of costs, and showing reason why the amendment should be allowed, were positive requirements of the Act of Assembly as conditions precedent to the relief asked for. If the action was not lawfully changed from covenant to case, the former must have been what the court below tried or ought to have tried. There was no evidence to sustain an action of covenant. All the covenants of the defendants as set forth in the article of agreement had been fully performed. If the form of action was properly changed, was there any evidence to sustain the declaration in assumpsit for money had and received? There was certainly no express contract, written or oral, by which Alfred Lamb was obligated to pay the plaintiffs upon the record any money. The Act of Assembly permits a change in the form of action, but not of the cause, by amendment: Shoneman v. Fegley, 7 Barr 433; Smith v. Bellows, 27 P. F. Smith 441; Wilhelm's Appeal, 29 Id. 121.

Mr. Justice MERCUR delivered the opinion of the court, January 3d 1881.

The right of amendment has been very much enlarged by several Acts of Assembly. The Act of 10th May 1871 gives power to the court, to change the form of action if the same shall be necessary for a proper decision of the cause on its merits. Although the power is thus given, it should be exercised with due regard to the rights of both parties. It should not be allowed so as to deprive the opposite party of any valuable right: Trego et al. v. Lewis, 8 P. F. Smith 468; Kaul et al. v. Lawrence et al., 23 Id. 410; Kille v. Ege, 1 Norris 102; Leeds v. Lockwood, 3 Id. 70. While in a proper case the court may permit the form of action to be changed by amendment, yet the cause of action cannot be so changed: Shoneman v. Fegley, 7 Barr 433; Trego v. Lewis, 8 P. F. Smith 468; Royse v. May, 12 Norris 454. When amendments are allowed, a just regard for the rights of all persons interested sometimes requires that the effect of the amendment should be qualified. We think no amendment, except one merely formal, should be allowed without notice to the opposite party. The court will then be prepared to make the proper order relating thereto: Kille v. Ege, supra; Leeds v. Lockwood, supra.

The facts in this case show the suit was commenced in covenant, in 1870. After it had been pending for nearly three years, on motion, the court permitted the form of action to be changed from covenant to case. During all that time the cause of action was for a breach of the defendant's contract under seal, with the plaintiffs. Under the changed form of action, it became a claim for money had and received by Alfred Lamb for the use of one Martin, and the attempt was to enforce it in this action, for the benefit of Crossman. If any cause of action existed in favor...