Beringer v. Meanor's Administrator , 1878 Pa. LEXIS 239 ( 1877 )

Mr. Justice Mercur

delivered the opinion of the court, January 7th 1878.

This was an action of assumpsit brought against Beringer and Guy.

The seventh assignment of error is to the court having permitted the record to be amended by striking therefrom the name of Guy as a defendant, whenever it occurred.

The Acts of 4th May 1852, and 12th April 1858, Purd. Dig. 70, pi. 3 and 4, give ample power to the court “ in any stage of the proceedings” to permit such an amendment to be made: Rangler v. Hummel, 1 Wright 130; Hite v. Kier, 2 Id. 72. So after verdict against three charged on a joint contract, a nol. pros, may be entered as to one, and judgment against the others, on the verdict: Ganzer v. Fricke, 7 P. F. Smith 316; Heemians v. Von Storck et al., not yet reported. The amendment may be permitted when the improper joinder of parties arose from a mistake of law or fact: Druckenmiller v. Young, 3 Casey 97; Cochran v. Arnold, 8 P. F. Smith 399; Pennsylvania Railroad Company v. Keller, 17 Id. 300.

On the trial of the cause it appeared that Guy was improperly joined; that the action should have been against Beringer alone. Thereupon the plaintiff below moved to amend by striking out the name of Guy as a defendant. The court then directed a nolle prosequi as to him to be entered. This was clearly irregular and technically an error, nevertheless the case proceeded and went to the jury against Beringer alone. So far as the merits of the case were affected, it was tried as if the proper form of amendment had been entered of record. After verdict it was properly amended nunc pro tune, as of the date of the original application. The whole irregularity was thereby cured. The second assignment therefore falls with the fourth.

The right of the defendant in error was based on the theory that Beringer acted as agent for the executor, and therefore for the benefit of the estate. There is abundant evidence that Beringer acted under some arrangement made with Davison Meanor, then executor. This is conceded by the plaintiff in error. He contends, however, that it was made with Davison for himself and children, and not with him as executor. If there was any evidence that in this arrangement Davison acted as executor, this question was properly submitted to the jury. We think there was evidence. By the will of the testator Davison was appointed executor, with power to sell the land, the'proceeds of which are in controversy. Before the sheriff’s sale he, as executor, entered into a contract with Beringer to sell the land for a commission on-the sale.

The evidence is very clear that the property was bid off by Guy at less than its value, under an arrangement between him and Beringer and Davison Meanor, that all Guy should have was the amount of his demands. Immediately after it was struck down to Guy, he said to Beringer and Davison Meanor, “ I bought it in, now I will put it back into your hands again.”

After Guy conveyed to the plaintiff in error he said to Meanor, “ I sold it to Mr. Beringer for that money because I knew him to be your agent; that is the reason I sold it to him.” Guy himself testified that at the time of the sheriff’s sale he did give several persons to understand 'that after he got his money the residue for which it might sell “should go to the benefit of the estate.” It is true he afterwards changed the language, for the “ benefit of these children.” Which was the true understanding, was properly left to the jury to determine.

Without further referring to the testimony in detail, it is sufficient to say that it is ample to justify the jury in finding that the plaintiff in error received the conveyance and held the land as agent under Davison Meanor, and that the latter acted in the transaction as executor of Eliza E. Meanor.

This disposes of the whole case. We see nothing in the charge of the learned judge, all of which is assigned for error, to call for criticism. Judgment affirmed.