Santomieri v. Boyajian

89 Pa. Super. 175, 1926 Pa. Super. LEXIS 23

• Court: Superior Court of Pennsylvania
• Decided: October 8, 1926
• Docket: Appeal 65
• Status: Published

Opinion

Opinion by

Linn, J.,

This suit for commissions earned in selling real estate was tried by a judge without a jury. Plaintiff and defendant contradicted each other in essentials. We accept the findings of the judge because there is evidence' to support them.

Appellant complains that at the trial the court permitted plaintiff to amend his statement of claim by adding the word “oral” to the averment stating defendant’s obligation on which recovery was sought, without granting his motion to continue the case on his plea of surprise. Appellant’s brief does not suggest how he was injured by proceeding with the trial; apparently he was as fully prepared as he could have been later; he seems to have known exactly wha.t the issue was. The averment in the statement was not well drawn in that it did not clearly appear that the contract was oral. Immediately after the statement was filed, defendant, under section 21 of the Practice Act of 1915, P. L. 483, moved to strike the statement from the record on the ground that it did not comply with section 9 of the Practice Act, by averring whether the contract was oral or written. That motion should have been granted, as the statement of claim was not clear on that point. Blit ¡after the motion was refused, defendant filed his affidavit of defense making a clear issue on the merits. He followed this at the trial by evidence indicating that he knew precisely what he had to meet. In the circumstances, it is clear that defendant sustained no harm that would call for reversal; there was no abuse of discretion.

Judgment 'affirmed.