Boner v. Luhman

Opinion by

Mr. Chief Justice Paxson,

This suit originated before a justice of the peace. It was tried in the court below upon the transcript without a declaration. The transcript sets forth that plaintiff claims $145 for timber sold to the defendant. Upon the trial in the court below, the plaintiff produced a promissory note for $145, signed by the defendant, which was objected to, and excluded upon the ground that the suit was brought for timber sold. The plaintiff then offered to show “ that his claim before the said justice of the peace was the same as before the court and jury, viz.: upon a promissory note for $145, made by the defendant, and payable to the plaintiff, dated Jan. 8,1887, and heretofore offered in evidence, not for the purpose of contradicting the record of the justice, but for the purpose of showing that the claim, made before the justice, and before the court and jury, was one and the same claim.”

This offer was objected to, and ruled out, upon the ground that it contradicted the record of the justice as indicated by his transcript, and because another judge of said court had decided that the case before the justice of the peace was upon a contract for the sale of standing timber.

The plaintiff then offered to amend the transcript, which stands as a declaration, so as to make it appear to be a claim upon a promissory note for $145, instead of for timber sold the defendant. This was rejected.

The plaintiff then offered to amend by filing a declaration upon the promissory note in question. This amendment was rejected by the learned judge, for the reason that by previous adjudication of the court, the action brought before the justice of the peace was an action brought on a joint contract for the sale of timber, which was a different cause of action than the one now offered to be shown. The court thereupon entered a compulsory nonsuit.

The facts as alleged are, that the plaintiff and one Theodore Kennedy were owners in common of a small tract of land in Foster township, Luzerne county, upon a part of which there was standing timber. On the day aforesaid they sold the timber to the defendant, Adolph Luhman, for the sum of $290; that he gave the plaintiff his note for $145, being his share of the purchase money, and at the same time settled with Kennedy for his share. It thus appears that the note in controversy was the plaintiff’s share of the purchase money for this timber, and we are at a loss to see why he was not entitled to recover in this suit, and why he was not permitted to show that the note was for the same cause of action as the suit before the justice. We do not understand the latter to be a suit upon a joint con.tract. It was a suit against the defendant for the plaintiff’s share of certain timber for which the defendant gave him his promissory note. The note did not change the cause of action. It was merely the evidence of the amount due. The giving of a note to a merchant for a bill of goods, or to a mechanic for the construction of a house, does not destroy the original cause of action. The one may bring his suit for goods sold and delivered, the other may file his lien. In any event, the plaintiff should have been permitted to amend his declaration by adding a. count upon the note. The right to amend the transcript is not so clear, but this is technical and unimportant. The first, 'third and fourth specifications are sustained.

The judgment is reversed, and a venire facias de novo awarded.