Opinion,
Mr. J ctstice Clark :The main question presented by this record is, whether or not the court was right in permitting the plaintiffs’ declaration to be amended by the additional counts filed January 10, 1882. The defendants’ contention is, that the amendment should not have been allowed as, in so doing, there was a misjoinder of counts and a change in the cause of action. Both of the objections were- considered by this court when the case was here before: 102 Pa. 156, and as the question is in no respect differently presented now, it may be considered as having been fully decided in our former rulings. It is proper, how*17ever, in view of the very learned, and. able argument now made, to state more fully the grounds upon which these rulings were made.
The action was in case. In the third count of the declaration it is charged that the defendants undertook for a certain consideration to construct for the plaintiffs, of flange iron, a boiler of certain quality and dimensions; that they did construct a boiler of different iron,which they “ falsely and maliciously represented ” to the plaintiffs was in every respect as strong and as -good as the boiler they contracted to make; that it would carry 120 pounds of steam, etc.; that the plaintiffs relying on these representations accepted the said boiler and set it up in their mill, but that the boiler being of worthless iron was not of the quality represented, -and in consequence thereof afterwards, exploded, thereby-causing the loss for which this suit is brought. The plaintiffs’ purpose in this case without doubt was to declare in tort for the- damages sustained through the defendants’ “false and malicious ” representations as to the quality and capacity of the boiler. The declaration was doubtless defective ; it may -be that it set forth no sufficient cause of action, in any of the counts, but as an action in tort was certainly in contemplation, and the plea of not guilty was entered by the defendants, it_was the duty of the court, if the cause of action was not changed, to entertain a motion to amend.
The cause of action is the particular matter for which the suit is brought, and when the object of an amendment is not to forsake this, but to adhere to it, and effect a recovery upon it, it is the duty of the court, when the merits of the case cannot otherwise be reached, to permit the amendment: Rodrigue v. Curcier, 15 S. & R. 81. “For example,” said this court in the case cited, “ the plaintiff declares on an indebitatus assumpsit for goods sold and delivered; but finding on the trial he is disappointed on the evidence, he asks permission to add a count on a quantum meruit. The amendment should be allowed, because the substance of the action was the value of the goods sold and delivered. It may be said that this is introducing a different contract from that set out in the declaration ; and true, in form, it is; but the injury done to the plaintiff is-the non-payment for goods sold by them to the de*18fendant, and the additional count is only for the purpose of recovering damages for that injury. So in an action on a policy of insurance, when the plaintiff declared on losses by capture by an enemy and perils of the sea, the court permitted an amendment, by adding a count for loss by barratry. This might be called a new cause of action, but it adhered to the policy by which the defendants engaged to indemnify the plaintiff from loss by barratry, as well as by capture and perils at sea. The object of the action was to recover for a loss covered by the policy, and this amendment, not going out of the policy, was admitted.” Therefore, it was held, in an action of slander, where the words spoken were so defectively set forth as not to be actionable, that the declaration might be amended by setting out a good cause of action, provided the words substituted import a charge generally the same: Proper v. Luce, 3 P. & W. 65. The cardinal rule, adhered to in all cases, is that the amendment must not introduce a cause of action substantially different: Knapp v. Hartung, 73 Pa. 290. It is error, therefore, to allow the plaintiff to add a new count for another slander, after the right of action upon it had been barred by the statute of limitations : Smith v. Smith, 45 Pa. 403. See also Trego v. Lewis, 58 Pa. 463; Kaul v. Lawrence, 73 Pa. 410; and Leeds v. Lockwood, 84 Pa. 70. In all forms of action, however, whether arising ex contractu or ex delicto, where the plaintiff has stated his cause of action defectively, he may amend his declaration at any time before or during trial: Root v. O’Neil, 24 Pa. 326.
The additional counts in this case, were upon the same “false and fraudulent” representations as to the quality and capacity of the same boiler, and for the same injury, to recover the same damages; they were in no sense the introduction of a new or different cause of action: Erie City Iron Works v. Barber, 102 Pa. 156. The action, as we have said, was in deceit ; the express warranty set forth in the new counts, as we said when the case was here before, was averred by way of inducement merely, or rather as one of the means by which the fraud was made effective. If it had been declared upon as the subject matter of the suit, such an amendment would have been rightly refused, but it was proper to aver it, as one of the acts or declarations of the defendants in connection with the *19alleged, fraud. At the special request of the defendants’ counsel, the jurors were plainly instructed there could be no recovery on any warranty or contract between the parties, express or implied; that the only ground of recovery was the fraud of Selden, in his interview with Barber. They were further instructed in substance, that the evidence must satisfy them, that the statements made by Selden were false, and that he knew them to be false, or that he asserted them to be true, Avithout any reasonable or probable grounds for believing them to be so, in either case, intending to deceive and defraud tbe plaintiff. ' 1
But it is said that some of the counts in the declaration are for damages arising ex contractu, whilst others are joined with them for injuries ex delicto, and that there is therefore a misjoinder. It is certainly true that counts in assumpsit cannot be joined with counts in deceit; they are radically inconsistent; and as the rights incident to the judgment in these respective forms of action differ, the joinder of them must necessarily produce incongruous results: McNair v. Compton, 35 Pa. 23; Wood v. Anderson, 25 Pa. 407; Finley v. Hanbest, 30 Pa. 195.
The defendants might have taken advantage of the misjoinder by withdrawing the plea and filing a special demurrer, but they did not; they stood upon their plea of not guilty, and went to trial upon the merits. The counts in assumpsit might have been stricken off at the trial -: Penn. R. Co. v. Zug, 47 Pa. 480; Noble v. Laley, 50 Pa. 281;‘but as the court in the clearest manner withdrew them from the consideration of the jury, the defendants suffered no harm.
We agree with the learned judge of the court below, that after a trial on the merits, no defect of pleading which could have been raised by a demurrer mil be fatal to the' judgment, unless it is shown to have injuriously affected the trial. The proper amendment will be considered to have been made. This is the outgrowth of the policy which has prevailed in practice in the allowance of amendments. The effect of our statutes has been to give more prominence to the trial of the cause had on its intrinsic merits, in the interest of a rational and speedy administration of justice, than to the exact and precise observance of the artificial forms originally devised for this purpose, *20but which are supposed iu some instances at least to defeat rather than to promote the ends of justice.
What we have said disposes of all the assignments of error, excepting the seventh and the eighth, and these, we think, have no merit. A careful examination of the evidence satisfies us that there was abundant evidence from which the jury was justified in inferring that Selden knew he was misrepresenting the quality of the iron, and the' strength and capacity of the boiler made from it. His testimony on this subject was inconsistent and to some extent contradictory, and, apart from all the other evidence in the cause, the inference stated might well be deduced therefrom. The eighth assignment of error is based upon the refusal of a point which was not stated in accordance with the facts. Selden’s statements, as proved, contained much more that was material than a comparison between flange iron and C. H. No. 1. If Mr. Barber is believed, Selden knew of the Heathcote proposition at the time these statements were made, and in view of all the evidence on the subject, we think there was a question of fact for the jury as to what order he referred.
Upon an examination of the whole case we are of opinion, that as the cause was fully and fairly tried on its merits, the judgment should be affirmed.
Judgment affirmed.