22 Pa. Super. 560 | Pa. Super. Ct. | 1903
Opinion by
This was .an appeal from the judgment of a justice of the peace. In the transcript of appeal which, under the rules of the court of Wyoming county, constitutes the declaration, it appears : “ The plaintiff claim being for wages of manual labor in manufacturing lumber performed by him for W. A. Lame-roux and S. Johnson, trading and doing business as W. A. Lameroux & Co.”
Upon the trial of the case in the court below, the plaintiff offered, by his own testimony, to show “ that he manufactured or made 4,310 mine ties at two cents apiece and cut and skidded 35,151 feet of mine props at one half cent per foot for the plaintiff in this case, which now forms the basis of plaintiff’s claim; ” he also proposed to show “ that the work was performed by the plaintiff personally or that it was done by himself and others; this for the purpose of establishing the amount due from the defendants to the plaintiff in this case.” This was objected to on the ground that any evidence of work done by any other person is not admissible in the issue as it then stood. The objection was overruled and the testimony admitted. In this we think there was error.
The plaintiff’s declaration was for manual labor performed by himself. Labor done by another did not secure to him the advantages that he had already gained and those to which he would be entitled, in case of a judgment legally recovered, and
In admitting the testimony the trial judge in the court below seemed to surrender his own convictions in deference to our ruling in Millheim’s Appeal, 1 Pa. Superior Ct. 367, but this case had no application to the one under consideration. It was a case in which the distribution of an insolvent’s estate was made under the provisions of the act of May 7, 1891, which provides: “ That all moneys that may be due from any person or persons to any and every laborer for work done in and about the cutting, peeling, skidding, hauling and driving of saw logs, the hewing, making, skidding and hauling of square timber, and the peeling, skidding and hauling of bark, for a period not exceeding six months prior to the death or assignment for the benefit of creditors of the employer or employers, or to a sale of said saw logs, square timber or bark, upon execution process against said employer or employers, shall be preferred and first paid out of the proceeds of any executor’s, administrator’s, assignee’s, sheriff’s or other officer’s sale of saw logs, square timber or bark, as the property of the employer ol’ employers.” This distinctly provides for the labor done in and about the hauling and, in Millheim’s Appeal, we held that the contractors who had done work personally upon the job were entitled, after their laborers had been paid, to the balance which represented their own work and that of their teams. But that ease has no application whatever to this. Here the claim was for manual labor performed by the plaintiff himself. To that he limited himself by his declaration and thereby secured the privileges to which we have already alluded. The testimony should have been confined to the labor of the plaintiff himself.
It follows that that portion of the charge of the court to
It must not be understood that in a general action of assumpsit the plaintiff would not be entitled to recover all that he offered to show was due him under the testimony and all that the court directed the jury to find as due him under his contract. If he had left out in his demand before the justice the claim for manual labor done by himself and had brought a general action of assumpsit, of course the testimony would have been proper as would also the charge of the court. It was only because he limited himself in his claim and thereby secured the privileges and exceptional advantages which are provided in our several acts of assembly for a claim for manual labor that he must be limited in another trial in the court below to the claim as he made it before the justice of the peace.
Judgment reversed and a new venire awarded.