
    Kennedy v. Chambley, Appellant.
    
      Practice, O. P. — Pleading — “Demurrer” — Effect of final judgment — Self sustaining statement of claim.
    
    "Where in an action of assumpsit, the defendant files a “demurrer” to an amended statement of claim, and at the trial his counsel states to the court that he does not deem the amended statement sufficient, but that he was not going to insist upon the “demurrer,” and asks the court to pass upon that question when the matter was finally passed upon, and the court tries the case on the merits and enters final judgment for plaintiff, the final judgment may be considered, by implication, as overruling the “demurx-er.”
    The rule that the statement of claim must be self sustaining applies only where a judgment is entered upoxx the pleadings, and not where it is based upon a finding of fact after trial upon the xnerits, for then the pleadings may be moulded to conform to the finding. ‘
    Argued Oct. '2, 1917.
    
    Appeal, No. 116, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1916, No. 358, for plaintiff oh case tried by the court without a jury in suit of James J. Kennedy, Jr., v. Alexander Chambley.
    Before Orlady, P. J., Porter, Henderson, Head, Képhart, Trexler and Williams, JJ.
    Affirmed.
    Assumpsit on a book account for labor and work done and materials furnished. ' ' ' •
    ■The case was "tried by Gorman, J:, without a jury. ■
    The "record showed that defendant filed a demurrer to the original statement of claim, and upon such statement being amended, filed an answer containing- demurrer and counter claim. Other facts appear by the Opinion of the Superior Court.
    December 13, 1917:
    The court entered judgment for plaintiff for $505.98.
    
      Errors assigned were (1) the judgment of the court and (2) in not disposing of the demurrer contained in the defendant’s answer to plaintiff’s amended statement of claim.
    
      John E. Nibble, for appellant.
    
      George C. Muhly, for appellee.
   Opinion by

Williams, J.,

This was an action of assumpsit on a book account for work and labor done and materials furnished.

At the trial counsel for defendant said: “In this matter a supplemental statement has been filed, which is a matter of law, and I deem sufficient to demur to it, but I am not going to insist upon the demurrer. Will you pass upon that when you pass upon the matter finally? I am going to admit of record all the claims in the plaintiff’s statement with the exception of four items.” The trial proceeded as to these and the court found for the plaintiff under the evidence: From the judgment entered upon the finding this appeal has been taken. The only assignment argued by the appellant is to the court’s failure to pass upon the so-called “demurrer.”

The final judgment may be considered, by implication, as overruling the “demurrer.” We are of opinion that the statement as amended was sufficient. It averred an unqualified promise to pay sums certain for labor and materials specified in the accompanying exhibits. If, however, we had been of opinion that the statement was insufficient we would not reverse, for the rule that the statement must be self-sustaining applies only where the judgment is entered upon the pleadings, and not where it is based upon a finding of fact after a trial upon the merits, for then, the pleadings may be moulded to conform to the finding.

The judgment is affirmed.  