275 Pa. 332 | Pa. | 1923
Opinion by
Plaintiff brought an action to recover damages for defendant’s alleged breach of contract to supply five carloads of oil. The statement, as amended, averred it was orally agreed that the product should be furnished at a fixed price; also a refusal to ship, on demand. An affidavit of defense denied the existence of any such understanding and liability. The dispute was submitted to arbitrators, who found for plaintiff, and, after trial on appeal, a jury rendered a like decision. Binding instructions for defendant had been requested and refused; later, its motion for judgment n. o. v. was sustained on the ground that the parol contract of sale was within the inhibition of section 4 of the Sales Act of 1915, and, therefore, no recovery was permissible. Prior to the filing of the opinion by the court below, plaintiff offered to amend, averring an actual delivery and receipt of a portion of the goods purchased, thus excepting it from the provisions of the act referred to, which application was not1 allowed. Complaint is now made of the refusal to permit plaintiff to make the necessary alteration and of the entry of judgment for the defendant.
It is here insisted that the court was in error in applying the statute of frauds, in view of the failure of defendant to suggest the proposed defense in the affidavit filed, or prior to verdict rendered. Undoubtedly, the
It is true certain personal defenses must be affirmatively set up and established, otherwise they are treated as waived; so, a failure to expressly aver the fact that the suit is barred by the statute of limitations prevents objection to recovery on this ground (Barclay v. Barclay, 206 Pa. 307; Murphy v. Taylor, 63 Pa. Superior Ct. 85), and a like ruling has been made where the attempt was to take advantage of the statute of frauds, enacted March 21, 1772, — a copy of the English statute of 29 Car. II, — not including however, sections 4 and 17: Lloyd’s Ap., 82 Pa. 485. Under that legislation, and because of the omissions, an action could still be maintained for damages arising from a breach of contract to sell land, though the agreement could not be specifically enforced: Parrish v. Koons, 1 Pars. Eq. Cases 78; Stephens v. Barnes, 30 Pa. Superior Ct. 127. But the Sales Act, now in question, says like claims shall be “unen
Though the defendant should call attention to his defense by statutory demurrer or affidavit, we fail to see why the legal bar to recovery may not be raised on his motion for judgment1, when the absence of any contract is alleged: Liquid Carbonic Co. v. Truby, 40 Pa. Superior Ct. 634. If, however, he assumes a new position at this late stage of the proceeding, varying from the theory on which the case was tried, the opposing party should be given fair opportunity to meet the new objection suggested, so that the merits of the case may be properly determined. The pleadings here did not call attention to the defense finally interposed, nor did any exception to the evidence offered give notice of the purpose'to resist the claim on the ground that the contract was not in writing. When binding instructions for the defendant were asked, they were not based on this proposition, and the contention now insisted upon was first heard on the argument for judgment non obstante veredicto. Then it was met with an application to amend, supported by averment of facts which, if established, would take the case from the ban of section 4.
An amendment to the effect that there was an actual delivery of part of the goods ordered was refused because
The motion for review in the present case was made by defendant under the Act of April 22,1905, P. L. 286. The court had the power to grant a new trial, or, in the exercise of its judicial discretion, to enter judgment on the whole record in favor of the party entitled thereto. Disregarding the application for an amendment to meet the new defense,- it decided in favor of the appellee. In view of the circumstances here appearing, we are of opinion that a contrary course should have been pursued, and plaintiff permitted to show, at a subsequent trial, that its claim was not within the purview of the statute of frauds.
If evidence is available to support the plaintiff’s claim, an opportunity to present it should be afforded. Though the grant of a new trial is a matter largely in the discretion of the court below, it should be ordered where necessary to reach a just determination of the merits of the controversy: Finch v. White, 190 Pa. 86; Alianell v.
The assignments of error are sustained and the judgment is reversed and a venire facias de novo awarded.