155 Pa. 418 | Pa. | 1893
Opinion by
This order must be reversed as an irregular and unauthorized mode of reaching a result different from what it professes to do. In terms it is a rule absolute for a more specific statement. Such a ruLe is apparently sanctioned by the rules of the court below, and may have its usefulness in its proper province, since wjhat would have been a bill of particulars under the common counts may now, under the procedure act of 1887, be incorporated in the statement, and may lack precision of names, dates, amounts, etc., as the bill of particulars might in the old practice. But such a rule cannot be made a substitute for a demurrer. We have unfortunately.no opinion from the learned court below to show the grounds of its action, nor has the appellee pointed out any lack of speeificness or precision in the statement to justify the order. On the contrary we are informed that the objection is not really as it professes to be, that the statement is not sufficiently specific, but that it does not set forth a good cause- of action. The established and only way to raise that question is by demurrer. On that the rights of the parties can be adjudicated, and the case ended or ordered to proceed. Nothing is to be gained by the substitution of a nondescript order, unknown to the law, which has not the effect of a judgment for either party, but leaves the case suspended like Mahomet’s coffin, so that the plaintiff cannot get on, and yet the defendant is not discharged. It is useless to say that plaintiff can amend his statement, for the amendment
On the face of the record there is no final judgment, but merely an apparent interlocutory order from which an appeal would not lie. But it is said by appellant, and appears to be conceded by appellee, that in its practical effect the rule is a judgment for defendant. We are therefore compelled to treat it as the subject of appeal, or leave the plaintiff without remedy for a plain wrong.
The statement does not in terms declare upon the fraud of defendant, and has other serious faults in that it does not aver facts categorically according to their legal effect, which is the office of good pleading, but sets out the evidence in extenso, with the facts affirmed or implied, all in a general mixture together. But it is a fair specimen of such pleading as the act of 1887 invites, and ought not to be held fatally bad if on scrutiny it discloses the substantial requisites of a good narr in deceit. We think it does so. It is not indispensable that fraud should be averred in express terms if the facts would support an inference of fraud by the jury. This statement sets out the agreement of defendant in writing in his own name to sell plaintiff the “ Hiram Potts farm,” with an averment that said farm includes certain land, the subject of controversy; that plaintiff, on asking for the title papers in order to draw a deed under the agreement, was furnished by defendant with a deed purporting to convey to defendant’s wife the land in the agreement; that following the description in said deed, a conveyance was prepared by plaintiff, executed by defendant and wife, and the purchase money paid or secured according to agreement; that subsequently plaintiff, on receiving delivery of possession by defendant, learned that the deed did not convey the whole of the Hiram Potts farm, but omitted an important part thereof which furnished access to a public road ; and that defendant on being requested to fulfill his agreement by convey
With the question of damages we have at present nothing to do.
The order making absolute the rule for more specific statement is reversed, the rule discharged, and procedendo awarded.
