Yost v. Eby
| Decision Date | 08 June 1854 |
| Citation | 23 Pa. 327 |
| Parties | Yost <I>versus</I> Eby. |
| Court | Pennsylvania Supreme Court |
Stevens, with whom was Livingston, for plaintiff in error.—As to the 1st and 2d assignments, it was contended that under the notice furnished on 5th January, 1853, of the matters of set-off, the evidence of the set-off should have been received. Notice of set-off should describe the demand with reasonable certainty: 6 Ser. & R. 120; 11 Id. 50; 5 Barr 54; 3 Id. 381; 1 Jones 268. The notice in this case was sufficient to inform the plaintiffs as to what would be the character of the set-off. Copies of the receipts proposed to be offered were furnished with the notice.
As to the 3d assignment, it was contended that the amendment of the plea was a matter of right, and not discretionary with the Court. The Act of 1806 authorizes amendments of pleas to be made on the trial. Sect. 6th of Act of 21st March, 1806; 2 Jones 342; 5 Whar. 116; 4 Harris 160; 7 Ser. & R. 81. Evidence may be excluded if notice, when required by rule of Court, be not given fifteen days before trial, if the plea be not amended; but the Act of 1806 authorizes amendments of the pleadings on the trial, and a Court has no right to adopt a rule prohibiting such amendment, unless made fifteen days before the trial. The plea of set-off had been entered in short. The plaintiffs' counsel asked for notice of the matters of set-off, and they were furnished; and on the trial the defendant's counsel moved to amend the plea by drawing it out at length. No new matter was offered. In the case of Sharp v. Sharp, 13 Ser. & R. 444, in which the plea was payment with leave, no notice of special matter had been furnished; and it was held that the defendant had the right to add the special matter by special plea. In the case of Wilson v. Irwin, 14 Ser. & R. 176 it was refused. In the case of McCay v. Burr, 6 Barr 148, the plea was payment with leave, &c. In the present case the offer was to amend the plea of set-off. In set-off the defendant is actor as well as the plaintiff; and if the plaintiff can amend his bill of particulars, as in Wager v. Chew, 3 Harris 338, why should not defendant be allowed to amend his plea of set-off: 13 Ser. & R. 445.
As to the 4th assignment, it was said that new parties were added, and that this was error: 3 Harris 21; 5 Barr 103.
North and Frazer, contrà.—It was said that the record does not state that the amendment as to the parties was objected to when made.
The rule of Court under which notice was required, provides that "when a set-off is pleaded, it shall, if required, be specially and fully set forth in the plea, or in a notice to be given fifteen days before trial."
As to the first assignment. The notice given did not conform to the requisition, as it contained no claim for grain sold or detained, and nothing to show that it did not remain in the warehouse of Eby & Lightner. The notice should be as certain, and contain as precise information as a special declaration: 5 Barr 53-4; 1 Jones 278; 3 W. & Ser. 364; 5 Ser. & R. 120.
Second assignment. The matters offered not being properly stated, the notice was not admissible under the rule of Court. There was no claim made by the plaintiffs for over-payment of grain as claimed in the narr.
3. A defendant who has omitted to give notice under a short plea of set-off, cannot amend on the trial by filing a special plea of set-off, setting out the matter with particularity: Thorne v. Hugh, 9 Legal Intelligencer 46; 14 Ser. & R. 176, Wilson v. Irwin; 6 Barr 153, McCay v. Burr.
4. The amendment of parties was right under the proviso to the 4th sect. of the Act of 20th March, 1810, providing that no mistake in form in proceedings before justices of the peace shall prejudice either party. The proviso relates to appeals from one justice: 3 Whar. 82. The same cause of action must be preserved: 2 Watts 14; 1 Harris 63.
The opinion of the Court was delivered, June 8, 1854, by LEWIS, J.
The Act of 1806, relative to the amendment of pleadings, declares that "when, in the opinion of the Court, an informality in a declaration or plea will affect the merits of the cause, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence, on or before the trial of the cause." The effect of this Act has been to make amendments, which before were discretionary, a matter of right, which it was error to refuse: 13 Ser. & R. 248; 6 Barr 88; 8 Watts 461, &c. Reason and justice require that the defendant should at least be placed on a footing of equality with the plaintiff. The statute does this in language entirely free from ambiguity. In the same breath that it grants to the plaintiff the right to "amend his declaration or statement," it declares that "the defendant may alter his plea or defence." Where a defendant claims a set-off, his defence is in the nature of an action, and his plea or notice of set-off is in the nature of a declaration. Whatever would be regarded as an informality in a declaration, to be amended as matter of right under this Act, must be considered in the same light, when it occurs in a plea or notice of set-off. In the amendment of a declaration the principle is established, that as long as the plaintiff adheres to the original instrument or contract on which the declaration is founded, an alteration of the grounds of recovery on that instrument or contract, or of the modes in which the defendant has violated it, is not an alteration of the cause of action: Cox v. Tilghman, 1 Whart. 287; Stewart v. Kelly, 4 Harris 162. New and different breaches of the same contract may be assigned: Cassel v. Cook, 8 Ser. & R. 268; Shannon v. Commonwealth, 8 Ser. & R. 444. Where the action is on a policy of insurance, and the plaintiff declared on losses by capture of an enemy, he may add a count on the same policy for loss by barratry. Where the action is for the misconduct of the plaintiff's agent in the sale of cotton, he may add different forms of misconduct on the sale of the same article: Rodrique v. Curcier, 15 Ser. & R. 82. Where the action is on a contract for the sale of hogs, and the plaintiff declares on an actual delivery of the hogs, he may amend by averring a mere readiness to deliver them: Stewart v. Kelly, 4 Harris 160. A different contract in form may be introduced, but not in substance; where the action is for the value of goods a quantum meruit may be added to the counts on an agreement for a specific price: Rodrique v. Curcier, 15 Ser. & R. 82. These principles have been recognised in the cases cited. Let us apply them to that under consideration.
The defendant claimed a set-off for the value of certain quantities of wheat delivered by him to the plaintiffs at different times. A receipt was taken at the time each load of wheat was delivered, specifying the date and quantity. In most of them it was stated that the wheat "was to remain in store for further orders;"...
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