50 Pa. Super. 72 | Pa. Super. Ct. | 1912
Opinion by
This was an action to recover the price of goods sold and delivered. The correspondence showed that defendants ordered of plaintiff a quantity of “strictly first class coiled elm hoops — the best it is possible to get” and that the plaintiff agreed to furnish, “nice, bright No. 1 stock.” There was ample evidence (1) that there are three distinct classes of hoops known to the trade, namely,
It is claimed that there was a mistrial because no plea had been filed. The pleadings consisted of a statement, answer and replication, and this mode of putting the cause at issue seems to have been in accordance with a rule of the court below in force when they were filed. But after-wards, and before the case was tried, a new rule was adopted which provides that no cause shall be deemed at issue or placed upon the trial unless the defendant has filed the appropriate plea to the pending action as provided by the act of May 25,1887, P. L. 271. No plea was filed but as no objection was raised by the plaintiff to going to trial without it, he is not in a position to raise it for the first time after he had had a trial on the merits, and verdict and judgment went against him: Barker v. McCreary, 66 Pa. 162. The Act of March 14,1872, P. L. 25, provides for just such a case. If necessary we might presume in furtherance of justice that the court below had exercised the power there given to permit a plea to be filed so as to make the proceedings and record conform to what was tried by the jury and found by the verdict: Jones v. Freyer, 3 W. N. C. 365. But as the court has allowed the record so to be amended it is unnecessary to resort to any presumption.
The assignments of error are overruled and the judgment is affirmed.