Liggett v. Ritter , 54 Pa. Super. 405 ( 1913 )

Opinion by

Henderson, J.,

The plaintiff’s action was on a contract of warranty alleged to have been entered into on the sale of a horse. Payment of the purchase money was secured by a judgment promissory note. After the plaintiff had taken possession of the horse he discovered, as he contended, that it was not as represented in the warranty and thereupon a return of the horse was tendered which wás refused by the vendor. On the maturity of the note the defendant caused an execution to be issued. The plaintiff then presented an application in the court of common pleas for an order opening the judgment to permit him to make defense on the ground of a breach of the warranty. A rule was granted January 18, 1912, to show cause why the judgment should not be opened and the defendant let into a defense. On the 25th of the same month Liggett paid to the sheriff the amount of the debt, no further proceedings having been had on „the rule. The defense here set up was a denial of the existence of a warranty and the assertion of the legal proposition that the action could not be maintained because the plaintiff had elected to proceed on the equity side of the court through the application to open the judgment. The jury credited the testimony of the plaintiff’s witnesses as to the existence of the warranty and the court instructed the jury that the legal position taken was not a defense. The assignments of error relate to the instruction of the court on the appellant’s contention that the plaintiff could not maintain this action because of his previous application to open the judgment, to the answers to points and to the part of the charge of the court bearing on the subject of the measure of damages. On the first question we think the ruling of the court was in harmony with the authorities in this state. The case principally relied on by the appellant is Himes v. Kiehl, 154 Pa. 190. In that case a judgment had been entered on a warrant of attorney given by the purchaser for the price of the property and a rule was obtained to open the judgment on an alleged breach of warranty. This rule was discharged by the court. The proceeding seems to have been abandoned but that was not disclosed in the record and for aught that appeared the action of the court might have been adverse to the defendant in the judgment; the rule was under consideration and a judgment entered thereon by the court. The court below had based its action on the fact that no depositions were taken nor arguments held under the rule, but it was considered by the Supreme Court that that would be entirely consistent with an absolute disposal of the rule on its merits for the want of testimony. In the present case the proceeding was abandoned without any action by the court under the rule. The defendant in the execution, perhaps under the advice of counsel or because his property and that of his surety was subjected to the lien of the execution, paid the writ to the sheriff and abandoned the proceeding. Actual payment discharges a judgment at law — Milligan’s Appeal, 104 Pa. 503 — and with the judgment went also the application to open. The present action was brought more than two weeks after the payment of the judgment and at that time there was no pending proceeding. The discharge of the debt had the effect of a discontinuance of the application to open the judgment. There was neither a hearing on the merits by the court nor a decision on the application. The rights of the parties were not adjudicated therefore on the complaint presented in this action. The remedies sought are not inconsistent. The same state of facts and the same evidence were involved in either form of procedure, and as one was abandoned before the other was commenced no sufficient reason appears why the second action should be defeated on that account alone: Schriver v. Eckenrode, 87 Pa. 213; Penna. R. R. Co. v. Davenport, 154 Pa. 111; Hyde v. Kiehl, 183 Pa. 414. If it be claimed that the former action was not discontinued of record and that therefore it was pending when the case before us was tried, the answer is that the remedy of a party aggrieved by the pendency of two or more suits for the same cause of action is by plea in abatement before judgment or by application for a stay of proceedings. It was held in Findlay v. Keim, 62 Pa. 112, that it is too late after going into a trial on the merits for the defendant to use the pendency of another action in bar of the plaintiff's right to recover. If such plea had been entered the plaintiff might have discontinued and replied that there was no such suit pending. The circumstance of a party having elected one of several remedies by action will not in general preclude him from abandoning such suit and after having duly discontinued it adopt any other appropriate remedy: 1 Chitty’s Pleading, 214; 2 Troubat & Iíaly’s Prac., p. 87, sec. 3. In Gardner v. Kiehl, 182 Pa. 194, it was held that the pendency of a prior action is the subject of a plea in abatement; not of a motion to quash the second writ, and that even in the case of a suit pending at the time of the petition to quash or of a plea in abatement the plaintiff might discontinue the first suit and reply that there was no action pending. On both the grounds stated we conclude therefore that the plaintiff is not precluded from maintaining his action. ,

The instructions of the court on the measure of damages as indicated by the answers to the plaintiff’s second point and the defendant’s’third point contain a correct statement of the law as applied to the ease under consideration. The difference in the market value of the horse as warranted to be on the day. of sale and the market value of the animal as it was afterward found to be is the measure of the plaintiff’s injury and this was brought to the attention of the jury in terms which must have been comprehended and which we think were not prejudicial to the defendant’s interests. The whole case was submitted to the jury in a form which left the jurors free to arrive at a conclusion in the light of the evidence as they believed it. The inaccuracies complained of were not of a character to prejudice the defendant’s case or to lead us to the conclusion that the result was in any way influenced thereby. It is true that the question of value is to be determined as of the time when the horse was sold, but we do not understand that the trial judge in the use of the language excepted to in the fifth and seventh assignments intended to establish any other standard. The use of the words “what its actual market value was after its qualities had been known” has reference rather to the fact of the disclosure of the bad qualities of the horse than the time when the value of the animal is to be fixed. The context indicates that the court did not intend to have the jury fix the value as of different dates but rather to institute a comparison between the horse as it was represented to be and the horse as it was afterward discovered to be. The condition of the animal at the time of the sale was the question to be determined and by the answer to it was the right .of the plaintiff to be tested.

The judgment is affirmed.