Smaltz v. J. B. Hancock & Co.

Citations

• 118 Pa. 550
• 12 A. 464
• 1888 Pa. LEXIS 421

Syllabus

<p>Plaintiffs declared in assumpsit against the surety on a sealed contract claiming upon a promise to pay in consideration of a forbearance to sue. After a plea, an additional count in covenant claiming upon a breach of the contract was filed. On a trial, there was a verdict for the plaintiffs conditionally.</p> <p>Six years thereafter, the jury fee was paid by plaintiffs, judgment entered and execution issued. On a rule to stay the execution, it was made to appear by consent of parties, that performance of the condition was impossible and known at the time of the verdict. The court thereupon vacated the judgment, set aside the verdict and ordered a new trial.</p> <p>Then the defendant demurred to the additional count for the misjoinder of covenant with assumpsit. The court overruled the demurrer with leave, the plaintiffs withdrew the counts in assumpsit and the defendant pleaded to the additional count, covenants performed. The defendant then moved for an order on the plaintiffs for payment of costs accrued, which was refused.</p> <p>After a second trial on the merits and an absolute verdict and judgment for the plaintiffs, on writ of error, taken by the defendant: Held,</p> <p>1. That under the circumstances, it was not error to vacate the first judgment, to set aside the first verdict and order a new trial.</p> <p>2. Nor was it error to overrule the demurrer, and to refuse the order on the plaintiffs for the payment of costs accrued.</p>