Stillwell v. Rickards

Citations

• 152 Pa. 437
• 25 A. 831
• 1893 Pa. LEXIS 996

Syllabus

<p>Pleading — Amendment—Non assumpsit and payment.</p> <p>Under the act of May 27, 1887, P. L. 272, and the statute of amendments, a defendant who has pleaded non assumpsit, has a right at the trial to add the plea of payment subject to such reasonable terms as the court may impose.</p> <p>Assumpsit — Affidavit of defence — Payment—Evidence.</p> <p>Plaintiff’s statement averred a loan to defendant. Defendant in his affidavit of defence denied that a loan had ever been made to him, and pleaded non assumpsit. At the trial plaintiff testified that he had used the sum loaned in paying a bill due by defendant, and that defendant had told him to make a due bill and put it in the cash drawer, but that, instead of doing so, plaintiff had credited himself in the regular books. Defendant testified that plaintiff, when he was about to leave his position as bookkeeper, stated that defendant owed him the sum claimed, which he had used in the business; that having confidence in plaintiff and no knowledge of the transaction, he told him to fill up a cheek for wages, and include his own claim in it. Plaintiff did so, and defendant signed the check. Plaintiff then went with the bookkeeper, who was to succeed him, to bank to cash the check. The money was handed to the bookkeeper, who absconded. Defendant requested leave to file a plea of payment, which the court refused, and gave binding instructions for plaintiff. Held, that the amendment should have been allowed; that the testimony of the defendant was relevant under the amendment; and that the case should have been submitted to the jury.</p>