96 Pa. 464 | Pa. | 1881
delivered the opinion of the court, January 3d 1881.
The right of amendment has been very much enlarged by several Acts of Assembly. The Act of 10 th May 1871 gives power to the court, to change the form of action if the same shall be necessary for a proper decision of the cause on its merits. Although the power is thus given, it should be exercised with due regard to the
The facts in this case show the suit was commenced in covenant, in 1870. After it had been pending for nearly three years, on motion, the court permitted the form of action to be changed from covenant to case. During all .that time the cause of action was for a breach of the defendant’s contract under seal, with the plaintiffs. Under the changed form of action, it became a claim for money had and received by Alfred Lamb for the use of one Martin, and the attempt was to enforce it in this action, for the benefit of Cross-man. If any cause of action existed in favor of the legal plaintiffs, covenant was the proper form. The plaintiffs gave in evidence an article of agreement under seal. ' It was made between Alfred Lamb and John Lamb, as executors of John Lamb of the first part, and the plaintiffs, Tyrrill and Simmons, of the second part. It provided for a sale from the former to the latter of two pieces of land, in consideration of a sum specified to be paid therefor. Before the contract was fulfilled by either party thereto, the vendees therein sold the land to one Newell. He paid to the Lambs the residue of the purchase-money due them, and they made and delivered deeds for the lands, to him. It appears when Newell paid this money, in February. 1865, to Alfred Lamb, Martin claimed and demanded of Lamb, a portion thereof, which was refused. That money is the sum claimed in this suit.
As the only agreement entered into between the legal plaintiffs and the defendants had- been fully performed, no right of action under it existed in them. Neither Martin nor Orossman was a party thereto. ■ It does not, therefore, appear that an action, in any form, could be maintained by the plaintiffs against the defendants. If any action for money had and received arose against the defendants, it did not accrue to the plaintiffs ; but to Martin alone. Ilis cause of action was not their cause of action. He did not derive it from them. Their claim was satisfied on the land being conveyed. They had no claim for money against the defendants.
Under precisely what agreement the claim of Martin rested is
It was too late to commence and maintain a new action based on the alleged agreement with Martin. The right of the defendants to interpose a plea of the Statute of Limitations was to them valuable. This amendment could not deprive them of that right. The form of action having been changed does not prevent us from now declaring its effect: Killed. Ege, supra; Leeds v. Lockwood, supra.
The learned judge was therefore right in ordering a nonsuit, and in refusing to take, it off.
Judgment affirmed.