Yost v. Eby
| Citation | 23 Pa. 327 |
| Parties | Yost v. Eby. |
| Decision Date | 08 June 1854 |
| Court | United States State Supreme Court of Pennsylvania |
1. Whatever would be regarded as an informality in a declaration and as amendable under the Act of 1806, is to be regarded in the same light when it occurs in a plea or notice of set-off.
2. Where the plea of " set-off" is put in and notice of special matter given in due time stating the nature of the defence with substantial precision, the defendant, on the trial, may alter his plea by averring the defendant's liability for the same subject-matter to have occurred in a different manner. The case of Sharp v. Sharp, 13 Ser. & R. 445, affirmed: the case of Wilson v. Irwin, 14 Ser. & R. 176, in this respect, disapproved of. (See the case of McCay v. Burr, 6 Barr 153.)
ERROR to the Common Pleas of Lancaster county.
A suit had been brought before a justice of the peace in the name of William Patton and Christian Umble, as trustees and assignees of the late firm of Eby & Lightner, v. Christian Yost.
Eby & Lightner, as partners, were merchants in Lancaster county. Christian Yost was a farmer, residing in their neighborhood. It was alleged on his part, that in the winter of 1848 and spring of 1849, he delivered to Eby & Lightner 448 42/60 bushels of wheat by weight, which they were to keep in store for him till he ordered it to be delivered in Philadelphia. The wheat remained in the warehouse till the fall of 1849 when Yost directed it to be taken to Philadelphia. It was alleged on his part that they sent to the city only 364 49/60 bushels, and disposed otherwise of the remainder, viz., 83 53/60 bushels, which, at $1.05 per bushel, would amount to $88.06.
On the 24th January, 1851, Eby & Lightner made an informal assignment of their property to Patton & Umble, for the benefit of creditors, and they, as assignees, brought suit against Yost before a justice of the peace, to recover $36.13, an alleged balance on book account, with interest and for an alleged over-payment on grain.
At the hearing before the justice, Yost produced as a set-off, a book account, amounting to $1.07 1/2, and a claim for $88.06 for the wheat before referred to. The justice refused to allow any part of the set-off except the book account of $1.07 1/2, and entered judgment in favor of Umble and Patton for $35.05 1/2, and costs of suit. Yost appealed--the appeal being entered on 1st September, 1851. Narr. was filed on 17th November, 1851, and on 25th February, 1852, a report of arbitrators was filed, awarding no cause of action. An appeal was entered for plaintiffs. The pleas, April 6 were non assumpsit, payment, and payment with leave to give especial matters in evidence, & c., and set-off.
A jury being up for trial on 23d November, 1852, a motion was made for leave to amend the record by stating the names of the plaintiffs, as Moses Eby and John L. Lightner, for the use of Patton and Umble, their trustees, and to amend the narr. so as to conform to the record. The amendment was allowed. Surprise being alleged, the case was continued at the costs of the plaintiffs.
On 29th November, 1852, an amended narr. was filed, and rule on defendant to plead. November 30, 1852, pleas " non assumpsit and set off" entered. On 3d January, 1853, notice was served on defendants' attorney to state the matters of set-off fully in a plea or notice, under the rules of Court; and on 5th January, 1853, notice was given, that the defendant, under the pleadings in the case, would give in evidence and rely upon the following receipts and matters of set-off, viz.:
1. Rec'd, Concord, December 13, 1848, from Christian Yost, 59 1/2 bushels white wheat, wt. 61 2/3, to remain in store for further orders.
| Signed, | EBY & LIGHTNER. |
What purported to be copies of other receipts were furnished--most of the other receipts were to the same effect; --in one of them the wheat was stated to be " in store," and in two of them " to remain in store."
On 27th April, 1853, the case was called for trial; and on the trial the receipts of which notice had been given, on 5th January, 1853, were offered in evidence on part of the defendant. Objection was made on part of plaintiff, and the case of Leas v. Laird, 6 Ser. & R. 129, being cited, and also the rules of Court relative to notice of set-off, the receipts were overruled. To this the first bill of exception was taken.
On part of defendant were then offered the receipts before referred to, coupled with evidence that the wheat had been otherwise appropriated by Eby & Lightner, and that the defendant had not been paid for it: cited 6 W. & Ser. 439; Id. 155; Id. 150. Evidence disallowed, and exception taken. This was the second bill.
Offer was then made on part of defendant to amend his plea, by pleading specially that the plaintiffs were common carriers, and as such received into their warehouse the following amounts of wheat to transport to the city of Philadelphia; and that instead of doing so, they appropriated the same to their own use, and have never paid defendant for the same. The wheat was the same referred to in the plea. The amendment was objected to, and was disallowed. Exception was taken--and this was the third bill.
April 27, 1853, verdict for plaintiffs, and damages assessed at $42.17.
It was assigned for error--1st. That the Court erred in rejecting the receipts for grain, copies of which were furnished to plaintiffs' counsel in the notice of set-off. 2. In refusing to allow the defendant, under the plea of set-off, to give the receipts in evidence, and to show the storage of the wheat, & c., part of the plaintiffs' claim being for over-payment of grain. 3. In refusing permission to amend the plea. 4. In allowing the substitution of other parties as plaintiffs.
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...
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