Kennedy v. Chambley , 1917 Pa. Super. LEXIS 128 ( 1917 )

Opinion by

Williams, J.,

This was an action of assumpsit on a book account for work and labor done and materials furnished.

At the trial counsel for defendant said: “In this matter a supplemental statement has been filed, which is a matter of law, and I deem sufficient to demur to it, but I am not going to insist upon the demurrer. Will you pass upon that when you pass upon the matter finally? I am going to admit of record all the claims in the plaintiff’s statement with the exception of four items.” The trial proceeded as to these and the court found for the plaintiff under the evidence: From the judgment entered upon the finding this appeal has been taken. The only assignment argued by the appellant is to the court’s failure to pass upon the so-called “demurrer.”

The final judgment may be considered, by implication, as overruling the “demurrer.” We are of opinion that the statement as amended was sufficient. It averred an unqualified promise to pay sums certain for labor and materials specified in the accompanying exhibits. If, however, we had been of opinion that the statement was insufficient we would not reverse, for the rule that the statement must be self-sustaining applies only where the judgment is entered upon the pleadings, and not where it is based upon a finding of fact after a trial upon the merits, for then, the pleadings may be moulded to conform to the finding.

The judgment is affirmed.