Smaltz v. Ryan , 112 Pa. 423 ( 1886 )

Mr. Justice Trunkey

delivered the opinion of the court, April 5th, 1886.

The parties agreed that the defendant should file a plea of payment, and that the-case should be tried on that plea with the same effect as to determining whether any and what amount is due and unpaid, as though scire facias had been issued.

At the trial the' defendant, claimed the right to begin and conclude, and- was allowed to first adduce his evidence, the court reserving the question as to the right to begin and conclude in summing up. The defendant’s testimony tended to prove that the plaintiff had wantonly and maliciously delayed the work to the damage of the defendant; and the plaintiff’s testimony tended to prove that said work had been diligently done, and without unnecessary delay. And thereupon the court refused the defendant’s request that he be permitted to begin and conclude the summing up to the jury.

The foregoing is the case presented in the bill of excep tions. It is obvious that the parties were prepared to contest and did contest a matter which the defendant could not have introduced without a plea having the effect of a general issue plea. Doubtless, the learned judge of the Common Pleas understood the parties intended to try the cause on its merits when he reserved the question as to the right to begin and conclude until he should ascertain whether the burden rested on the plaintiff to prove performance of his contract.

Under his plea the defendant might, have been confined to proof of matters tending to show actual payment; the giving and accepting of money or other thing in discharge of the debt: Hobson v. Croft, 9 Pa. St., 363; Erwin v. Leibert, 5 W. & S., 103. The plea of payment, with leave and notice, is either a special defence or a general defence, as the notice makes it one or the other. Where it is a general defence, or a defence that the plaintiff did not perform his contract, it admits the execution of the instrument, or the making of the bargain on which the suit is founded, and nothing more. Under the plea of payment, with proper notice, any equity which tends to defeat the plaintiff’s action may be given in evidence, but without notice the plea has no more than its common law effect: Roop v. Brubacker, 1 Rawle, 304; Covely v. Fox, 11 Pa. St., 171. The nature of the. plea of payment in Pennsylvania is shown in the cases cited.

The real contest was about a matter only admissible by treating the plea as accompanied with notice. That matter was in no sense a payment on the price of the work; it struck at the foundation of the action, and put the plaintiff to proof of performance in order to establish his right to recover the contract price. • The record shows only the plea of payment, and upon the letter of the rule of .court, the defendant was entitled to begin and conclude. Upon terms that all the testimony inadmissible under the plea be stricken out and excluded from consideration of the jury, the court could justly have granted the defendant’s request. But as the parties tried the case upon its merits, and the evidence was offered and admitted without regard to the form of the plea, the court rightly observed the spirit of its rule of practice.

Judgment affirmed.