C. H. Hardy Auto Co. v. Posey , 1912 Pa. Super. LEXIS 63 ( 1912 )

Opinion by

Oblad y, J.,

On July 3, 1907, by an agreement in the nature of a bailment, the C. H. Hardy Auto Company leased and hired to C. W. Posey for the term of two months from that date a Wayne auto, reserving for its hire and use for the term, the sum of 1550, payable in cash $250 and the balance on September 3, following. Indorsed on the agreement is an assignment by C. H. Hardy, “of all his right, title and interest to Harry Thomas ” who is the use plaintiff in this action. The statement of claim avers that the Auto company, the original lessor, for value assigned all its interest in and under the lease to the said Harry Thomas. This averment was not denied in the affidavit of defense so that the confusion of names in regard to the actual lessor is not material, whether it be a corporation, a trading name or an individual.

Where pleadings are irregular and imperfect but not necessarily defective the court must, if possible, give such effect to them and to the operation to the statute of amendments as will secure a trial upon the merits, provided it leads to results that will not prejudice the defendant and may subsequently be pleaded as an adjudicated determination of the litigated matters, if any other suit were instituted: Stainer v. Insurance Co., 13 Pa. Superior Ct. 25.

The suit being brought in the name of the legal plaintiff, his right alone is in question and it may be recovered upon or defended against, as the defendant is not permitted to dispute the form of the action as presented by his record. A person for whose use a suit is brought need not show a right in himself; all that is necessary is to show the legal plaintiff’s right to recover. This suit being brought in the name of the legal plaintiff with whom the defendant contracted, the judgment is an adjudication of the controversy: Adams v. Edwards, 115 Pa. 211; Guaranty Trust & Safe Deposit Co. v. Powell, 150 Pa. 16.

The alleged conversations in regard to the condition of the machine prior to the execution of the lease were properly excluded, as the manifest purpose of the offers was to lay ground for a'set-off — for the amount of the repairs which the defendant had expended so as to put the machine in good condition. Though part of the offer was admissible, it was properly rejected as the court was not bound to separate the good from the bad, and was justified in rejecting it as it was presented: Mundis v. Emig, 171 Pa. 417.

The law is well settled in Pennsylvania that set-off cannot be pleaded or allowed in an action of replevin to recover personal property: Nat. Cash Register Co. v. Cochran, 22 Pa. Superior Ct. 582; Eureka Knitting Co. v. Snyder, 36 Pa. Superior Ct. 337; Hall’s Safe Co. v. Walenk, 42 Pa. Superior Ct. 576.

The judgment is affirmed.