Trego v. Lewis

_1. A declaration charged that the contract had been made in Pennsylvania : the whole transaction was in Virginia. An amendment laying the contract as having been made in Virginia was formal and proper. 2. The court will not permit a plaintiff to change or enlarge his ground by an entirely new and different cause of action, especially when by the Statute of Limitations, or an award of arbitrators, it would work an injury to the opposite party. 3. Amendments which tend to advance the interests of justice are proper and necessary, and should always be allowed. 4. Where the damages found are greater than the amount laid, the declaration might be amended in the court below, and the amendment will be permitted in the Supreme Court when the case is there on error. 5. Where jurisdiction depends upon the sum demanded, as before justices of the peace, jurisdiction will not be ousted by the recovery of a greater sum where it is made up by interest accrued after suit brought. 6. _ Letters and acts of one of two parties charged jointly, admitted as tending together to show a joint liability, although no one singly might have been evidence. 7. Former joint transactions are evidence on the question of joint liability, in an action on a subsequent contract.

Error to the Court of Common Pleas of Cumberland county: To May Term 1868, No. 23. This was an action of assumpsit, brought May 12th 1859, by James Lewis against Levi Trego and A. P. Henderson. The declaration was filed October 5th 1860, and contained all the common counts, with the ordinary venue “ Cumberland county ss.” As filed, the first count laid the contract “ on the-day of -, in the year one thousand eight hundred and —>, at the county aforesaid.” The other counts were the same, except laying the contract “on the day and year last aforesaid.” The damages were laid at $1000. The defendants pleaded “non assumpserunt.” On the 21st of August 1867, the court, against the objection of the defendants, allowed the declaration to be amended by filling the blank with “ 1st September 1859,” and inserting in each count before “at the county aforesaid,” the words “in the county of Frederick and state of Virginia, to wit.” The claim was for 115 hogs, which the plaintiff alleged he had bought for the defendants, and for feed which he furnished whilst they were in his care. The plaintiff gave evidence that the defendants were in Virginia with the plaintiff weighing hogs together, which had be.en purchased from sundry persons; that they received hogs from plaintiff at the scales after the hogs were weighed; that they deposited money in the Bank of Winchester, Virginia, to the credit of plaintiff, in the fall of 1856; that they had a draft drawn by' them and endorsed by plaintiff discounted at that bank, and the proceeds passed to their credit; they said the proceeds were to be used in the purchase mainly of hogs. Clark, a witness for plaintiff, testified: He had seen defendants at plaintiff’s in 1856 and 1857, buying hogs. In December 1857, plaintiff told him to drive the hogs to Trego and Henderson, who were to meet him near Hagerstown. Witness drove 142 hogs, and near Hagerstown met Trego, who engaged him to deliver the hogs at Chambersburg, gave witness $500 for plaintiff, and told him to tell plaintiff to make out the bill for corn while he had the hogs on hand, and he would send albthe money together when he had sold the hogs. Ewing, another witness, had been employed in September 1857, by defendants to drive hogs from plaintiff’s to Carlisle ; plaintiff and defendants went with witness on the road, and Trego asked plaintiff to look for more hogs ; that he would pay 6£ cents per pound as long as hogs were 9 cents per pound. A number of letters from January 22d to December 10th 1857, inclusive, some signed “ Levi Trego,” and some “ Trego & Hen derson,” all in the handwriting of Trego, were received in evidence against the objection of the defendants, and bills of exception sealed. The letters speak of hogs being sold, of wanting more at a time named; that Henderson would bring money; that if plaintiff got any hogs they would try to deal with him, and that he should not buy for any one else; that if he could get hogs they would come when they heard from him; that he should engage all the hogs he could, &c. A letter of October 15th 1857, signed by Trego, directed plaintiff not to buy any hogs, and hoped he had not any engaged; of October 20th, signed by Trego, expressed disappointment that plaintiff had bought hogs, and said he had told him not to buy till he should hear from him. Plaintiff gave evidence that Henderson and Trego had hogs, and had been dealing in hogs together about 1856, 1857 and 1858. The defendants gave in evidence a number of letters from the plaintiff to Trego. In one dated February 13th 1858, he says: “ I received your note of the 10th instant, with Smyser & Wilts’s note enclosed, and sent back, stating that you could not get it discounted. I will send it on for collection,” &c. They then offered the note referred to in the letter, to be followed with the record and declaration in a suit to November Term 1859, by Lewis against Trego, on the note, for the purpose of showing that the plaintiff was not dealing with Henderson and Trego jointly. The offer was rejected, and a bill of exceptions sealed. The plaintiff asked the court to charge :— 2. It devolves upon the defendants to show that the hogs sent by Lewis in December 1857 were not received by Trego, for Trego & Henderson, and on the terms offered to Lewis in the letters from them, and as detailed by Mr. Ewing. Where parties have dealt with another jointly and on the pledge to him of their joint credit, they must show when that course of dealing ceased, and what new arrangement was made in its place. The court (Graham, P. J.) answered. “ If the authority from defendants to plaintiff to purchase hogs for them was general and continuing, then we answer this point in the affirmative. But if it was limited, and given to purchase particular lots only,, then the plaintiff must show a joint authority from defendants, to purchase the hogs in controversy to entitle him to recover.” The defendants submitted a number of -points. Those, the answers to which were assigned for error, with the answers, are as-follows:— 1. There can be no recovery by the plaintiff in this action unless the plaintiff has satisfied the jury that this particular lot of hogs was purchased by both Henderson and Trego, and that they assumed a joint liability. The court said :— “ We answer this in the affirmative, unless the evidence satisfies you that there was a continuing authority from defendants to plaintiff to purchase hogs for them which had not been countermanded.” 2. As this suit is not against the defendants as copartners, but as co-contractors in a single transaction for the hogs sent to Pennsylvania in December 1857, evidence of purchase of hogs by defendants from the plaintiff at any former time, and of what defendants or either of them then said or wrote in regard to the transactions then on hand, is not admissible to fix any joint liability on defendants for the hogs which were sent in December 1857 ; and all testimony which was admitted of that kind should be dismissed from their consideration by the jury. Answer: “ We cannot answer this as requested. You will consider all the evidence in determining the joint liability of defendants in this cause.” 3. The declarations of Trego at the house of the plaintiff, on the porch, and when Mr. Henderson was in the house, as detailed by witness Ewing, and the letters signed Trego & Henderson, in the handwriting of Trego, are not evidence against Henderson, and can only affect Trego, by whom the declarations were made and the letters written. And the direction of Lewis to Clark, that he was to drive the hogs to Trego and Henderson, and that Trego and Henderson were to meet him near Hagerstown, are not evidence to affect Henderson, as he was not present, and it was not communicated to him. Answer: “ The conversations of Trego in the absence of Henderson, and the letters written by Trego, are not evidence to affect Henderson, unless sanctioned and approved by Henderson, nor are conversations of plaintiff in the absence of Henderson evidence against Henderson.” 5. The counts in the declaration as amended were objected to at the time they were asked to be amended; and they were amended after the Statute of Limitation would bar any other action, and against the consent of defendants, and there can be no recovery on them. “We cannot answer this as requested. The court did permit the declaration to be amended as stated. But no new cause of action has been introduced, no transaction between the parties has been shown except the alleged purchase and sale of these hogs, which, it appears, was made in Virginia and not in Pennsylvania.” 6. If the plaintiff seeks to recover on the evidence that when Henderson and Trego were in Virginia, in September 1857, Trego said that he and Henderson would pay 6£ cents per pound, as long as pork was at 9 cents per pound, and that Lewis should go •on and look out for more hogs, and that in pursuance of this agreement, plaintiff did go on and purchase and deliver Logs in December 1857, the plaintiff cannot recover in this action. Answer: “We do not understand that the plaintiff seeks to recover on any particular isolated item of evidence, but on all the evidence in the case, tending to show a joint authority from defendants to purchase hogs for them and a delivery of the hogs to Trego, as the plaintiff alleges, for Trego and Henderson. If there was authority from defendants jointly to purchase these hogs and they were purchased in pursuance of such authority, and delivered to Trego, one of the purchasers, and there was no subsequent understanding or agreement between the plaintiff and Trego, that Trego alone was to pay for them or sell them for the plaintiff, then the plaintiff may recover. But if the evidence fails to satisfy you that the hogs were purchased in pursuance of a joint authority from defendants, then the plaintiff cannot recover. We have before said that the amendments of the declaration, permitted by the court, will not prevent a recovery.” The verdict was for the plaintiff for $1132.84, for which judgment was entered. The defendants sued out a writ of error, and assigned for error: I. The amendment to the declaration. 2 and 3. Admitting the letters in evidence. 4. Rejecting the defendants’ offer. 5. The answer to the plaintiff’s second point. 6. 7, 8, 9 and 10. The answers to the defendants’ points. II. Entering judgment for damages beyond the amount laid in the declaration.