209 Pa. 65 | Pa. | 1904
Opinion by
Plaintiffs as heirs of John Sieger brought separate suits in assumpsit against Amandus Sieger and Lewis A. Sieger, who had been tenants in common with J ohn, for their share of the profits of the estate in common, received by Amandus and Lewis since the death of J ohn. By agreement the two actions were consolidated into one and changed in form to account render. At the trial the defendants offered to prove that John had received in his lifetime more than his share of the profits for which he had failed to account and was thereby indebted to the defendants. Objection by plaintiffs was sustained and the evidence excluded on the grounds of the statute of limitations, and that the proposed set-off was not in the same right. It is practically conceded by appellants that this ruling would be correct in an ordinary action. Plaintiffs were claiming in their own right as tenants in common for their purparts of the profits since the death of their ancestor, while the set-off, independent of the question of the statute of limitations, was at least primarily against the ancestor’s executors.
But appellants claim that by the agreement of consolidation and change of form of the actions all these matters were in
The original actions of assumpsit were based on claims by the plaintiffs in their own right since the death of their ancestor, as tenants in common with the defendants. Assumpsit was an inappropriate form of action and the agreement changed it to account render. The name of Caroline Sieger, surviving administratrix of John Sieger was added as a plaintiff for what reason does not appear, unless as suggested in the argument, because she as widow was entitled to a dower interest in the profits of the joint estate. The agreement provided “ that the plaintiffs shall file a suitable statement or declaration in account render to which the defendants shall file such plea or pleas as are proper and appropriate in actions of account render.” This contemplates the existing controversy but makes no change in the cause of action. The agreement is not only one of amendment of form, but also one of reference for purposes of trial, and was to be made a rule of court. What the referees were v to do was stated clearly but in very general language, “ to hear testimony, decide all questions of law and fact arising before them, state an account between the respective parties, plaintiffs and defendants, and between each of them respectively, and make report thereof as provided by the acts of assembly.” In other words the referees were to take the place of a court and jury and determine the case at issue between the parties. There is no indication of any purpose either to enlarge or to waive the rights of either party as they existed at the time, nor to change in any way the cause of action at issue between them. Such an agreement would have been competent for the parties to make, but it would have been an entire change in the pending controversy between them and would naturally have been expressed specifically in terms which would not have admitted of doubt. It certainly ought not to be inferred from the use of general language whose ordinary meaning imports only a change of method in the determination of an existing controversy.
As, therefore, the claim offered in evidence by defendants was against a different party from the plaintiffs and in a different right, it was properly excluded, whether called technically a set-off or an item of credit in account render.
A second and subordinate question in the case is whether defendants were properly charged with interest on the sum found to be due by them on the accounting. The court did not compute the interest from the date when the moneys were received, but made a reasonable allowance for settlement and charged interest only from the time when the money should have been paid over. This was as favorable to appellants as they were entitled to ask. See McGowan v. Bailey, 179 Pa. 470.
Judgment affirmed.
