Abbott v. Stevens

Colt, J. In defence of this action the fact is relied on that in a previous action on an account annexed, brought by this defendant against this plaintiff, a credit on account of and to the full amount of the demand here sued was allowed to the plaintiff in the account annexed, and judgment rendered for the balance only. The record in that case shows that such a credit was given. The answer denied each allegation in the declaration. The verdict was a general verdict for the plaintiff in the usual form; and the amount of damages assessed plainly indicates that it was rendered for the balance claimed to be due, after allowing the credit with interest. Upon this evidence, standing alone, it is clear that the plaintiff is bound by the credit which the defendant has so given. After judgment it must be taken to be a payment to the extent of the credit at least, and when the credit is for all that can be justly claimed, a subsequent action for the recovery of that item will be fully barred. Briggs v. Richmond, 10 Pick. 391. The plaintiff seeks to avoid the effect of this evidence by an entry found upon the clerk’s docket in the same case in the following words: “ Jury, in answer to court, stated they had made no deduction on account of any alleged payment.” But the difficulty is that this statement, standing alone, as a mere memorandum upon the docket, is ambiguous and incomplete. It does not appear to what payment the answer of the jury related, nor from what amount claimed the jury' had made no deduction. It does not appear from the bill of exceptions that payment was pleaded at all in the original suit; but if it was, or if without regard to the pleadings evidence of payment was introduced, then the payment referred to in the memorandum would seem to mean payment by the defendant in reduction or satisfaction of the balance then claimed, rather than to mean that the jury had made no deduction on account of a credit which the plaintiff had himself given in his account annexed. The effect of the previous credit and judgment cannot be said as matter of law to be defeated by the memorandum in question and it was error for the judge to direct the jury as matter of law to find for the plaintiff. • Exceptions sustained.