Smith v. Bellows

77 Pa. 441, 1875 Pa. LEXIS 73

• Court: Supreme Court of Pennsylvania
• Decided: March 1, 1875
• Docket: No. 1
• Status: Published

Opinion

Chief Justice Agotsw

delivered the opinion of the court,

A careful examination of this record discloses no error for which the judgment should be reversed. In the view of the case taken by the plaintiff in error, that the action lay against the company only, there would be force in some of the exceptions taken at the trial. But the evidence of the plaintiff below presented a case of individual overreaching on part of the defendant, and it was so submitted to the jury, whose verdict establishes this view of the defendant’s conduct. In that light we discover no error in the manner the case was treated. If the evidence were insufficient to support this view, or its weight fell upon the other side, the remedy of the defendant was in the court below.

We discover no error in the change of the form of action. The test is in the cause of action, not the Statute of Limitations. If the cause of action is the same declared upon then the suit, quoad it, was brought in time. If the cause of action was not the same, then the action was not brought for it, and the Statute of Limitations would fairly apply. The fact that the first narr. was for money had and received (this being the material count), did not make the change from assumpsit to case in deceit, necessarily a change in the cause of action. The same circumstances of fraudulent imposition, showing that the defendant had obtained the money of the plaintiff, which ex equo et bono, he ought to return, would support either form of action.

Judgment affirmed.