Opinion by
Smith, J.,The question submitted for decision in the present case relates to the sufficiency of the plaintiff’s statement to recover for the use and occupation of his land. This appears by the course of the trial and by the question reserved: “ Whether under all the evidence in this case the plaintiff, under the averments in the statement, is entitled to recover for use and occupation.” While this reservation is not explicit or definite, and if viewed as referring to the sufficiency of the whole evidence, is bad (Wilson v. Steamboat Tuscarora, 25 Pa. 317; Wilde v. Trainor, 59 Pa. 439), yet as the sole purpose ascribed to it by its author, is that it deals only with the question of the sufficiency of the statement to warrant a recovery for use and occupation; and as there is no exception or objection to this interpretation, we accept this view of it.
Discarding the averments upon which recovery was forbidden and the surplusage, the remainder of the plaintiff’s statement avers, in substance, “ that the defendant took possession and refused to give up the plaintiff’s house and lot of ground for one year, and collected the rent from the tenant.” The verdict was for the rent due and interest thereon, It is contended that the statement is defective in uniting two incongruous causes of action, sounding in tort and in contract. But this misjoinder is waived by a voluntary trial on the merits, and judgment. The alleged faults in pleading could have been amended under the act of 1806. To be effective these objections should have been presented on demurrer to the statement, “ after a trial on the merits, verdict, and judgment, no defect would be fatal unless it is shown to have injuriously affected the trial; on appeal the proper amendment will be considered to have been made: ” Chapin v. Cambria Iron Co., 145 Pa. 478; Allegheny v. Nelson, 25 Pa. 332. No such injurious showing appears in the record. Under the act of May 25, 1887, the remedy for the wrongful occupancy or use of the plaintiff’s land is an action of trespass : Silliman v. Whitmer & Son, 11 Pa. Superior Ct. 243. The claims objected to were withdrawn from the jury and the case was submitted on the claim for use and occupation only. This was sufficiently averred and the recovery therefor was fully warranted.
Judgment affirmed.