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COMMERCIAL TRADING COMPANY v. MILSAN MILLS INCORPORATED (04/19/84)

filed: April 19, 1984.

COMMERCIAL TRADING COMPANY, INC.
v.
MILSAN MILLS INCORPORATED, APPELLANT



No. 128 Harrisburg, 1982, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Lebanon County, No. 2024, 1980.

COUNSEL

Stanley W. Katz, Lebanon, for appellant.

Daniel J. Barrett, Athens, for appellee.

Wickersham, Wieand and Cercone, JJ.

Author: Wieand

[ 327 Pa. Super. Page 410]

Staylor Industries, Inc. (Staylor) assigned to Commercial Trading Company, Inc. (Commercial) all sums owed to Staylor by Milsan Mills Incorporated (Milsan). Commercial gave notice of the assignment to Milsan on August 9, 1979. Commercial subsequently commenced an action against Milsan to recover the sum of $29,070.16, which Milsan allegedly had owed Staylor at the time of the assignment. Milsan's answer contained a denial that any amount was due. Instead, it was alleged, credits had been extended by Staylor to Milsan in the amount of $14,784.26 on August 8, 1979, prior to notice of the assignment. The balance of $14,285.90, it was also alleged, had been paid to Staylor by

[ 327 Pa. Super. Page 411]

Milsan's check dated October 26, 1979. A partial summary judgment was entered in favor of Commercial and against Milsan for this latter amount because it was improperly paid to Staylor after Milsan had received notice that its account indebtedness had been assigned to Commercial.*fn1 The issue of Milsan's liability for the balance of $14,784.26 was tried before the court without a jury.

At trial, Milsan admitted the assignment. However, its witnesses testified and produced bookkeeping entries that the account between Milsan and Staylor had been reduced by a credit extended by Staylor on August 8, 1979. This credit was extended, it was stated, to cover the value of Milsan's cloth seized by creditors of Staylor, to which creditors the cloth had been sent for work, as security for moneys owed them by Staylor. Commercial produced no contradictory evidence but generally denied Milsan's defense. The trial court, without determining the credibility of Milsan's evidence, entered an adjudication in favor of Commercial because "[t]oo broad a variation exists between allegata and probata."*fn2 Exceptions were dismissed, and judgment was entered on the adjudication by the court.

It was error to base a decision on that which the court deemed to be a variance between allegata and probata. Although it is correct that a party's proof must be consistent with his pleadings, Willinger v. Mercy Catholic Medical Center, 241 Pa. Super. 456, 464, 362 A.2d 280, 284 (1976), aff'd, 482 Pa. 441, 393 A.2d 1188 (1978), and that a defendant may prove only those defenses which have been pleaded, Ochs v. Reynolds, 155 Pa. Super. 469, 472, 38 A.2d 728, 729 (1944); 29 P.L.E. Pleading ยง 175 (1960), a failure to object to a variance at trial is a waiver of the right to

[ 327 Pa. Super. Page 412]

    object to it thereafter. Sangl v. Sangl, 394 Pa. 156, 159-160, 146 A.2d 303, 305 (1958); Williams v. Philadelphia Transportation Co., 219 Pa. Super. 134, 140, 280 A.2d 612, 615 (1971).

In the instant case, the only variance between appellant's evidence and the averments of its answer was the date on which the alleged credit was given by Staylor to Milsan. The answer contained an averment that the transaction had occurred on October 26, 1979;*fn3 whereas, the evidence at trial was that the credit had been extended on August 8, 1979. Appellee did not object to the variance or otherwise raise it at trial. The trial court, therefore, could not properly raise the issue sua sponte and refuse to consider appellant's evidence of an alleged ...


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