Trego v. Lewis

The opinion of the court was delivered, May 20th 1868, by Agnew, J. Many errors have been assigned in this case, but we discover none possessing any weight. As the plaintiff in error has discussed them in classes, we may follow the same path. The [469] amendment of the declaration permitting the promises to he laid as made in Virginia, adding the proper videlicet to bring the action ■within the jurisdiction of the court, was not erroneous. The action was brought to recover the price of the hogs purchased in Virginia. All the evidence and the history of the case show conclusively that Lewis, who was a farmer living in Frederick county, Virginia, had his transactions with the defendants there. There is not even a pretence that the cause of action arose in Pennsylvania. Now that the omission of the pleader to state the formal averment that the contract was made in Virginia, should close the door against an amendment of this merest form, would be a stigma upon the administration of justice. Undoubtedly the court will never permit a party to shift his ground or enlarge its surface by introducing an entirely new and different cause of action, especially when by reason of the Statute of Limitations, or an award of arbitrators, or for some good reason, it would work an injury to the opposite party. But amendments which tend only to advance the interests of justice are not only proper, but necessary, and should always be allowed. In this connection we will also dispose of the last error alleged in entering a judgment on a verdict for a sum greater than the damages laid in the declaration. The declaration urns clearly amendable in the court below, and the entry of judgment was merely an oversight. The action was brought in 1859, and in consequence of the suspension of intercourse between Virginia and Pennsylvania, by the war of rebellion, was not tried until 1867. The damages were laid in $1000, and the verdict was recovered for $1132.84, the excess being a sum much below the interest which had accrued on the demand in the mean time. The sum recovered, exclusive of the interest, therefore, was less than the damages laid in the declaration at the time it was filed. In eases where even jurisdiction depends on the sum demanded, as in an appeal from a justice of the peace, the jurisdiction is not ousted by the recovery of a greater sum where the excess is merely the interest accrued after suit brought. The plaintiff had the right to amend in the court below, and this being the case we will permit it to be done here. The authorities cited by the defendant in error clearly justify this exercise of our discretion. Some dicta have been cited that the court will reverse for this cause. Where the justice of the case demands it, we might perhaps decline to permit it after the party had slipped his opportunity. But the legislature has led the way to the making of amendments of the most vital character, altering names Christian and surname, changing and adding names of parties, and even striking out parties where too many have been included. It becomes us to keep pace with legislative reform instead of lagging in its rear. Nothing is a matter of more form than the sum inserted at the conclusion of a narr. as the damages suffered. We [470] therefore will allow the amendment which would have been of course in the court below. We think the court below was right in receiving in evidence the letters and acts of Trego, one of the defendants. It is not always in the power of the party to give direct evidence of the joint acts of parties charged jointly. He may follow each by his separate steps, until he is able to bring them together, and show that they are in company with each other, and acting concurrently. Often the most complete chain of evidence binding parties together, is forged of separate links, and to refuse to weld them together by means of proof would frustrate justice. The rejection of the suit brought on the note endorsed by Trego did the defendants no injury. It was not alleged that this evidence tended to show payment, and the endorsement being upon the note of a third party to Trego individually, was necessarily the separate act of Trego. It did not therefore of itself sever the relation of Trego and Hénderson in the purchase of the hogs. We think there was abundant evidence of the joint relation between Trego and Henderson in purchasing the hogs, to carry the case to the jury. The argument'of the plaintiff in error that because a man may be jointly concerned in five transactions, and yet not in the sixth, therefore the prior purchases of the plaintiff by both the defendants in 1856 and 1857 were no evidence of their joint relation in the last purchase in 1857, is not convincing. It is true that standing alone these former transactions might he insufficient to secure a verdict, but connected with the other evidence they constituted a strong circumstance in the cause. A man’s ordinary course of dealing is often resorted to and relied on in the proof of liability. Thus where one is in the habit of sending a servant to take up goods, it is held to be proof where some of the goods are not shown to have been taken up, by direct proof of his order. Both parties were together in their last visit to Virginia in September, and started for hom<? with a drove of hogs. Lewis accompanied them a part of the way, and Trego and Henderson were sitting on their horses in the road talking-to Lewis of purchasing hogs. Trego told Lewis to go on and look out for more hogs. Lewis went on and bought hogs to the number of 142 in the same fall, and in December drove them into Pennsylvania to Trego. These are the hogs for which the claim was made in the suit. Clearly this justified submitting the case to the jury on all the evidence. Finding no error in the record, the judgment is affirmed.