Fox v. Cohen

Decided December 18, 1916

Superior Court of Pennsylvania · decided 1916-12-18

Appeal, No. 93, Oct. T., 1916, by defendants, from judgment of O. P. Municipal Court,. Philadelphia Co., July T., 1915, No. 423, for plaintiff on case tried by the court without a jury in suit of George I. Pox v. Jacob Cohen and Benjamin Shuman, late copartners, trading as Cohen & Schuman. Trespass for conversion of goods. From the record it appeared that by a mistake the writ was issued in assumpsit.

Relies on Herrlein v. City of McKeesport

Affirmed · Decided 1916-12-18

¶1Opinion by

Kephart, J.,

¶2The assignments of error are not in accordance with the rules of court and this appeal should be quashed. We have, however, considered the case on its merits and have concluded that the judgment of the court below was properly founded. The appellant does not deny that it owes the plaintiff the amount sued for, but contends that there is a variance between the plaintiff’s statement and his proof. No exception was taken to the order amending the form of action and it .was not error for the court below to allow such amendment. No exception was taken to any supposed variance as required by our many decisions. It cannot be taken advantage of on a point for binding direction: Ward v. Mfg. Co., 247 Pa. 277.

¶3We have, however, examined the testimony and find no material variance.

¶4The judgment of the court below is affirmed.