Brown v. Kirk , 26 Pa. Super. 157 ( 1904 )

Opinion by

Pokteb, J.,

The transcript of the proceedings before the justice clearly indicated an action of trover and conversion. The statement filed by the plaintiff in the common pleas upon the appeal declared for damages, “ for injuries, by breach of contract, which the plaintiff suffered at the hands of the defendant; ” but the averments of the details of fact are such as to establish a case in winch an action of trover and conversion would lie. The statement is ambiguous, but the defendant having pleaded non assumpsit and gone to trial upon the merits, we would, if the record were otherwise free from error, permit the statement to be amended in this court. As the case must go back for a new trial an amended statement can be filed in the court below. The plaintiff having been duly adjudged a bankrupt, any right which he may have to maintain this action has passed to his trustee, who should be made a party to the proceeding.

The only error which requires a reversal of this judgment is in the ruling which is the subject of the twelfth specification. The defendant and William C. Whiteside, acting as agent for the plaintiff, had entered into an agreement settling all matters in controversy between the parties. The authority of Whiteside to act for the plaintiff was a question material to the issue, and the court below permitted the jury to pass upon the question of the existence of such authority. This being the case, the defendant ought to have been permitted to examine Whiteside as to the instructions which he had received from the plaintiff. The twelfth specification of error is sustained.

The judgment is reversed and a venire facias de novo awarded.