Allen Hall v. Roberts , 85 Pa. Super. 279 ( 1925 )

Argued March 2, 1925. There was evidence produced on the trial of the action from which a jury — or in this case the referee — might find that the order for a carload of cantaloupes, a carload of potatoes and a carload of peaches constituted one contract: Weeks v. Crie, 95 Me. 458, 48 A. 107; Garfield v. Paris, 96 U.S. 557; Mills v. Hunt, 20 Wendell (N.Y.) 431; Jenness v. Wendel,51 N.H. 63; Coffman v. Hampton, 2 W. S. 377; and the referee having so found, it follows that the delivery to and acceptance by the defendant of the carload of cantaloupes and his payment therefor constituted such an acceptance and receipt of part of the goods contracted to be sold as to permit an action against the defendant upon the carload of peaches without any note or memorandum in writing signed by him: Sales Act of May 19, 1915, P.L. 543, section 4.

The amendment to the plaintiff's statement permitted by the court after the testimony was closed amounted to nothing more than a formulation of the pleadings so as to conform to the testimony: Wall v. Royal Society of Good Fellows, 179 Pa. 355,368; it did not change the issue or go outside of the testimony which was already in: Pittsburgh-Texas G. O. Co. v. Adams, 79 Pa. Super. 511. It was such an amendment as has frequently been allowed even in the appellate courts.

On the other hand, the amendment to the affidavit of defense offered by the defendant, more than a week after the testimony had been closed and the plaintiffs and their witnesses had gone back to their homes, was such an amendment as raised a new issue and would have required the reopening of the case and its trial upon a wholly different theory. No error was committed in refusing such an amendment at that stage of the proceedings: Williams v. Williams, 79 Pa. Super. 192.

The assignments of error are overruled and the judgment is affirmed.