246 Pa. 407 | Pa. | 1914
Opinion by
But one question is raised' in this appeal: Did the court below err in permitting, an amended statement to be filed? In the original statement filed July 27, 1909, it was alleged that on April 1, 1905, the defendant was indebted to the plaintiff in the sum of $6,800 for money loaned. That upon that date the defendant paid to the plaintiff the sum of $3,800 on account of this indebtedness, leaving due thereon the sum of $3,000 with interest. In an amended statement which plaintiff was permitted to file on January 24, 1911, it was averred that during the year 1905, when the defendant was indebted to the plaintiff in the sum of $6,800, the defendant induced plaintiff to accept and receive from him certain shares of mining stock of the value of $3,000, and that defendant agreed with plaintiff that if these stocks were not good, he would make them good. When the case came to trial the first time, this amendment had not been filed, and in its absence the trial court refused to allow the plaintiff to recover upon a promise which was not declared upon. Notwithstanding defendant’s objection, plaintiff was permitted to amend, and, defendant pleading surprise, the case was continued. When it came up for trial again, the issue submitted to the jury was whether there was any such promise to make good the mining stocks as was alleged by the plaintiff. The court said to the jury: “The sole question therefore which is submitted to you is, whether or not the defendant agreed to guarantee and make good this stock or its value.” The jury found that such a promise was made, but defendant points out that it was made more than six years prior to the filing of the amended statement, in which, for the first time, the promise was set forth.
At the trial the plaintiff testified that he received the
The question whether anything was due upon the original contract was not submitted to the jury, as the court below was of the opinion that if plaintiff was entitled to recover at all, it was upon the guarantee of the stock. This view was undoubtedly correct. The indebtedness of $6,800 was paid in 1904 by taking a note for $3,800, and accepting the stocks for the balance, or $3,000. The note was afterwards paid, and is out of the ease. The stocks and defendant’s relation to them are still in question. Upon defendant’s promise to make them good, this suit, under the amended statement, was brought. But for the fact that the statute of limitations had run against defendant’s promise, when the amendment was filed, the defendant would undoubtedly be liable. That the original indebtedness, and the promise to guarantee the stocks taken in part payment, constitute two separate and distinct causes of action, there can be no doubt. When the money which plaintiff originally loaned to defendant was repaid to him, no matter whether by note or in stocks, that was an end of the original cause of action, based upon the loan of money. A new and different cause arose, upon the promise to make good any loss which should be suffered on the stock which he then purchased from the defendant. It was upon this new promise that plaintiff based his right to recover; and whether or not such promise was made, was the issue presented to the jury. They found that
The first, second and third assignments of error are sustained, and the judgment is reversed.
