Middletown Mfg. Co. v. Phila. & R. R.

Citations

• 145 Pa. 187
• 22 A. 747
• 1891 Pa. LEXIS 664

Syllabus

<p>(а) Plaintiff brought assumpsit for breaches of a contract, and, at the same time, trespass for damages to certain land, the subject matter of the contract. On the trial of the assumpsit, plaintiff, under an amendment to his declaration, gave evidence of acts forming the cause of action in trespass.</p> <p>(б) In the charge to the jury, the court withdrew from consideration all the testimony adduced under the amendment, as insufficient to support it, and a verdict was rendered for the plaintiff upon the other causes of action, as shown by the testimony submitted to the jury.</p> <p>(0) Before judgment was entered on that verdict, the action in trespass was called for trial. In this action, the plaintiff gave evidence of the acts as to which evidence had been given in the assumpsit, when the defendant put in evidence the record of the latter action, to raise an estoppel:</p> <p>1. In such case, no judgment on the verdict in. assumpsit having been entered, and, moreover, the evidence given under the amendment having been withdrawn from the jury, it was not error to refuse to instruct that the “judgment” recovered in the assumpsit was a bar to the action in trespass.</p> <p>2. Nor was it error, after judgment had been entered on the verdict in the action of assumpsit, to enter an order in that cause striking the amendment itself from the record, as said amendment had become useless after the testimony given under it had been withdrawn.</p>