Kelly v. Eichman

3 Whart. 419 | Pa. | 1838

The opinion of the court was delivered by

Rogers, J.

For the purposes of the point raised by- the first exception, we must take it, that the contract on which the suit is brought was with Kelly alone: and this is the fair import of the evidence. Have the defendants, then, precluded themselves from the benefit of this defence, by their own act; for unless they have, it is very clear, that the action in the name of Kelly and Boyle cannot be.supported by proof of a contract with Kelly alone. It is contended, that the defendants were estopped from denying that Boyle and Kelly were jointly interested in the contract, because, in a former suit with Kelly, Kelly was prevented from availing himself of this claim, on the allegation, that the contract was made with Kelly and Boyle, and not with Kelly alone. An estoppel is when a man is precluded, by his own act or acceptance, from saying the truth. And it may be by matter of record, of writing, or in pais. Co. Litt. 352, e. The defendants availed themselves of the plea, that the action was joint, when it suited their purpose; and shall they be permitted now to deny their own suggestion, when it operates against them ? If they are at liberty to do so, where will it.end? May it not be repeated, again and again, to meet the emergency of each particular case ? To prevent such injustice and delay, it has been repeatedly ruled, that a party may preclude himself, by his own act, from alleging the truth: and in accordance with this principle, it was decided, in Martin v. Ives, (17 Serg. & Rawle, 364,) that when the defendant gave in evidence an award of arbitrators, in an action of ejectment, between the same parties, he was estopped from denying its validity, on error. That a party should be estopped, under such circumstances, from showing the truth, is an equitable, as well as a legal principle; for where a person has the benefit of a defence, as far as it serves his turn, good faith and fair dealing require, as between the same parties, that he should not be allowed afterwards to repudiate it, when it makes against him.* It is the duty of the Court, so far as practo false and this in some be done, by preventing the ^*party who resorts to such shifts, from reaping any advantage from them.

Next, as to the refusal of the Court to allow the amendment. It has been decided in two cases, Wilson v. William’s Executors, (8 Serg. & Rawle, 57,) and Dunn v. Conner, (17 Serg. & Rawle, 432,) that a new party cannot be added, nor a new cause of action introduced, under the pretence of an amendment. Now it is difficult to perceive a distinction between adding and striking out the names of parties to a suit; for the effect, in either case, is to change the whole ground of controversy. The decisions under the fourth section of the act of the 20th of March, 1810, under which the amendment is claimed, have been sufficiently liberal, but have not yet gone to the extent proposed. Appeals from Justices of the Peace, under the act, are subject to the same rules as other actions, where the parties are considered to be in Court. No deficiency in form, or substance, in the record, or proceedings returned, nor- any mistake in the form or name of the action, prejudices either party, in the court to which the appeal is made. By the use of the terms, either party, the legislature evidently refers to the parties before the justice. The parties and the cause of action being the same as before the justice, the act authorises the appellate Court to allow amendments in substance, as well as in form: and this, perhaps, is as far as can be prudently permitted; for it is the opinion of some of our wisest judges, that a greater latitude would lead to inextricable confusion and difficulty. But be this as it may, the amendment, as laid, is neither within the words, nor in the spirit of the act of 1810, and was therefore properly refused. Such radical changes should not be allowed, without express legislative direction.^*

Judgment reversed, and a venire de novo awarded.

Cited by Counsel, 1 Watts & Sergeant, 242, 298 ; 8 Id. 30 ; 2 Barr, 426; 3 Casey, 180.

Cited by the Court below, 1 Jones, 402.

Cited by the Court, 4 Wharton, 346; 1 Jones, 55, 227; 7 Harris, 177.

Brought before the Court again, 5 Wharton, 446.

* See ante 274.

* See ante 87 ; 2 Harris 70, 133 ; 3 Id. 22; act of May 4, 1852, P. L. 574, Pur. Dig. 47, | 3.