Fidler v. Hershey

| Pa. | Jun 9, 1879

Mr. Justice Tiiunkey

delivered the opinion of the court,

Whenever it shall appear that a mistake or omission has been made in the name or names of any party, the court is authorized, by Act of May 4th 1862, Pamph. L. 574, in any stage of the proceedings, to permit amendments. Statutes relating to amendments are liberally construed in furtherance of trial upon the merits. The evidence tended to show and the jury found that there was a lease signed by Householder, Spangler and Eidler. As between themselves, Householder was principal and Spangler and Eidler his sureties, and though Hershey had knowledge of that relation, they were jointly liable to him. The summons against Spangler was returned, “not found.” Householder did not appear, and'judgment ought to have been entered against him in default; but he does not complain, and the irregularity did no injury to Eidler. Proofs, verdict and judgment against Eidler were same as if the jury had been sworn as to him alone and he is not hurt by a joint-debtor being concluded with him. Besides, he did not object, perhaps could not, to the jury being sworn as to both. The first four and last two assignments are not sustained.

It has repeatedly been ruled that the surety shall be exonerated, only when the payee has refused to bring suit, after a positive request and explicit declaration by the surety that he would otherwise hold himself discharged: Erie Bank v. Gibson, 1 Watts 143" court="Pa." date_filed="1832-09-15" href="https://app.midpage.ai/document/erie-bank-v-gibson-6311074?utm_source=webapp" opinion_id="6311074">1 Watts 143. The notice as proved came far short. Moreover, it was given before the debt had become due, and for this cause, had it been complete in substance and form, it would not avail to" discharge the surety: Hellen v. Crawford, 8 Wright 105; Conrad v. Foy, 18 P. F. Smith 381. In the latter case it was said that notice ought in justice to be in writing and in the most explicit terms; and this has been made requisite by the Act of May 14th 1874, which, however, does not affect transactions prior to January 1st 1875.-No foundation was laid for the testimony set forth in the fifth assignment.

The plea of nil debet puts in issue the existence of the debt claimed, and anything may be given in evidence under it, which shows there is nothing due at the time of pleading, as payment, release or other matter in discharge. Formerly this rule was in force in England and still is in Pennsylvania. In a late case, Brubaker v. Taylor, 26 P. F. Smith 83, the present chief justice, referring to a portion of the evidence, said it was admissible under the plea of nil debet, because “ it tended to show there was no existing debt, whether it had been discharged by payment, release or in any other way.” Householder testified that he had paid taxes for his landlord to Eckenrode, could not state the amount, had taken a receipt which he had with him at April court and'had lost it. Then defendant offered to prove by-Detrich, to whom Householder had shown the receipt at April Term, that it was for $46. It is manifest from the bill of exception that the very point decided by the court was, that the offer was inadmissible under the pleadings. In an elaborate opinion, it was ruled in Mills v. Buchanan, 2 Harris 59, that a party objecting to evidence will be confined to the ground of objection taken in the court below. Hence the plaintiff cannot here object, that Householder. did not say he had shown the receipt to Detrieh, nor that there was no offer to prove its identity. Had he made the objection there, Householder was present, and could have settled it with a word. Having decided that the testimony was inadmissible under' the pleadings, the court put an end to proof or offer of proof of identity of the receipt. The objection and decision were on the ground that the offered testimony was inadmissible for a specified cause, and it would be unfair and unjust to the defendant for this court to say, although that decision was erroneous, an objection could have been taken for want of preliminary proof;' for, had it been, he might have made that proof. If, indeed,-the rejected testimony would not have been sufficient, with the other evidence, to establish the disputed fact, there would be no reversal; but as it was ample for submission to the jury, the case must go back for another trial.

Judgment reversed, and a venire facias de novo awarded.