Ernest v. Wible ( 1898 )

Opinion by

Beaver, J.,

It is to be observed, as preliminary to the consideration of the question involved in this case, that judgment was obtained by the plaintiff against the defendant before a justice of the peace in default of an appearance and that, upon an appeal from the said judgment, in pursuance of the rules of court of Armstrong county, the transcript of the justice was taken as the plaintiff’s statement and the prothonotary entered the plea of nil debet as of course, so that the case was put at issue, without the direct intervention of either the plaintiff or the defendant. With the record in this condition, the cause came on for trial.

It appeared on the trial of the cause, on the cross-examination of the plaintiff himself, that his claim, instead of being against the defendant who was sued as an individual was against Wible and Stoup, with whom he had made a contract and who were known by him- to be partners. The court below ruled, as a matter of law, that the defendant could not take advantage of the nonjoinder of his partner under the general-plea-and that it could only be taken advantage of under a plea in abatement. The court, in its general charge, says: “ Now there is a matter of law in eases of this kind. Where there are two cocontractors in a j'ob and the plaintiff or the party doing the work for them brings a suit against one of them, it is the duty of the party that is sued, if he thinks that under the arrangement between him and his cocontractor that he is not responsible, it is his duty at the earliest stage of the case that he can to put in a plea of abatement and require the plaintiff to bring in the other party. Now in this case that has not been done by Mr. Wible. This action was brought before a justice of the peace and we have nothing before us to show that he made any plea in abatement, saying that he was not responsible for this but that he and his 'cocontractor Stoup were responsible. He has not done anything of that kind and, not having done so, then we say, as a matter o'f law, that he is hot entitled to set up the question of partnership. It was his duty at the earliest stage of the proceeding that he could, if he thought Stoup was responsible with him for this indebtedness, he ought to have made it known to the plaintiff. Then, if the plaintiff, if he had seen fit to go on with the case, if there was a partnership between the parties, he might have been thrown out of court. But the defendant, B.. L. Wible, not having done that, we hold, as a matter of law, it is too late now to put in as a defense in this case, even if there was a partnership between the parties.”

This portion of the charge is assigned for error and covers the only question in the case. The defendant was summoned to answer the plaintiff, presumably for a debt due from him, as an individual, to the plaintiff. There having been no appearance before the justice — and the defendant was not bound to appear — he had no notice whatever of the character of the f.la.im made .by the plaintiff. No statement of the claim was filed and, therefore, the defendant went ,to trial, without any knowledge whatever as to the character of the plaintiff’s demand. It was not a question of what he thought the claim of the plaintiff might be. He was summoned to answer for an individual debt due from him to the plaintiff. How could he, under such circumstances, enter a plea in abatement? Nothing in the pleadings brought notice to him that the claim was for work done under a contract with Wible and Stoup; and, in the absence of such notice, he was under no obligation whatever to set up the nonjoinder of Stoup in a plea in abatement, even admitting that it was his duty to do so, under any circumstances. “ The rule that the proof and the allegation must correspond is of universal application in suits on contracts : ” Fagely v. Bellas, 17 Pa. 67. True there was no statement of plaintiff’s cause of action filed, but the form of the action itself Avas notice to the defendant to answer for an individual debt due from him to the plaintiff. When, therefore, the plaintiff himself testified on cross-examination that his contract was made with Wible and Stoup, his proof did not correspond with the implied notice which the form of the action gave to the defendant. It is true that in other parts of his testimony the plaintiff attempted to neutralize the force of his cross-examination as to his contract with Wible and Stoup but this became, under all the testimony, a question for the jury and should have been submitted to them for their finding.

The questions as to whether or not pleas in abatement are abolished by the procedure Act of May 25, 1887, P. L. 271, and whether or not it is necessary in any case to plead nonjoinder of a partner in abatement are not legitimately involved in the case before us and upon neither of them do we now-express an opinion.

The court below was certainly not justified in holding, as a matter of law, that the defendant, under the facts of the case, was estopped from taking advantage of the character of the claim made by the plaintiff under the general plea. At the most the question Avas one for the jury.

The judgment is reversed and a new venire awarded.