Tyrrill v. Lamb, 96 Pa. 464

Tyrrill v. Lamb

96 Pa. 464 | Pa. | 1881

Mr. Justice Mercur.

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 *468rights of both parties. It should not be allowed so as to deprive the opposite party of any valuable right: Trego et al. v. Lewis, 8 P. F. Smith 468; Kaul et al. v. Lawrence et al., 23 Id. 410; Kille v. Ege, 1 Norris 102; Leeds v. Lockwood, 3 Id. 70. While in a proper case the court may permit the form of action to be changed by amendment, yet the cause of action cannot be so changed: Shoneman v. Fegley, 7 Barr 433 ; Trego v. Lewis, 8 P. F. Smith 468; Royse v. May, 12 Norris 454. When amendments are allowed, a just regard for the rights of all persons interested sometimes requires that the effect of the amendment should be qualified. We think no amendment, except one merely formal, should be allowed without notice to the opposite party. The court will then be prepared to make the proper order relating thereto : Killo v. Ege, supra ; Leeds v. Lockwood, supra.

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 *469not clearly shown. It was under some express or implied contract between him and the defendants. It was, therefore, in his own right, and should have been enforced in his own name as the legal party. His right of action accrued in February 1865. The amendment changing the form of action, was made in September 1873, being more than eight and a half years after the alleged right of action accrued. The effect now claimed for the amendment is a right to substitute a new and different cause of action. This cannot be allowed : Koyse v. May, supra. The case of Smith v. Bellows, 27 P. F. Smith 441, does not remove this difficulty from the pathway of the plaintiffs. There the cause of action was the same.

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.