Card v. Sargeant

The opinion of the court was delivered by Hebard, J. Under the plea of nul tiel record, the defendant gave notice that he should rely upon the proof of the same facts set up in his second plea in bar. This is a novelty in pleading, for the plea under which the defendant proposes to give this special matter in evidence, is to be determined by the court, upon an inspection of the record, — ■ while the facts, to be given under the plea, being matter for the consideration of the jury, it would be difficult to see how that mode of defence could be available. The plaintiff now claims that, as the court found this plea for the plaintiff, they also found the facts offered under that plea against the defendant. But we are not disposed to view it in that light. The whole case shows that no action was had upon that notice; and so far as that notice forms any part of the case, it is to be regarded as a nullity. Upon the defendant’s second plea in bar, the court rendered judgment for the defendant, which must conclude the case, unless the court committed some error in relation to the law ; for this court can no more revise the judgment of the county court, in relation to matters of fact, than we can the verdict of a jury upon the same facts ; so that we cannot inquire whether the court founded their judgment upon insufficient testimony, if it was legal in its character, and tended to prove the issue. The case finds that the defendant introduced one Burlin Curtis, who testified, among other things, that, to secure the payment of the note, described in the exemplification, on the first day of October, 1839, the said Curtis and one Roswell Tuttle executed and delivered to the plaintiff their joint and several note for $115,50, including the amount of the said one hundred dollar note and interest, together with the balance of a book account, then and there found due from Curtis to Card on settlement, and that said Card then and there agreed that, on payment of the note signed”by Curtis and Tuttle, both notes should be delivered up to Curtis. [399] The ease further finds that Curtis insisted on some written acknowledgment of the foregoing agreement, and on the 28th day of October, 1839, the plaintiff" delivered to said Curtis a paper by him signed as follows : “ 1 certify that Burlin Curtis has left with me a note for ‘ one hundred dollars, which note I say I will give up if he ‘ pays me a note I hold against himself and Roswell Tuttle ‘ of one hundred and fifteen dollars and fifty cents, with use, ‘ when called for. “I say I will write to him three weeks before I call for the ‘ money.” To this testimony the plaintiff objected, and now asks to have the. judgment reversed, because the court admitted it. The testimony of Curtis was admissible, after he was discharged of his interest, as the case finds he was. It does not appear in what way he was discharged, and, for that reason, we cannot judge of the sufficiency of his discharge. The testimony of Curtis had a tendency to prove the issue ; and his further testimony had a tendency to prove that the one hundred and fifteen dollar note was paid before the trial in this suit. What else Curtis testified to we do not know, as the case finds that he testified to these facts, “among other things.” What these other things were, we have no means of knowing, or how much credit was attached to his testimony. It all seems to be a question of fact, which the court, by the agreement of the parties, have passed upon, and have found that the facts set forth in the defendant’s plea in bar, are true. To say that the proof did not show a payment of the whole sum for which the defendant was liable, is to question the intelligence or the integrity, of the county court for the plea covered the whole ground, and the court found that the plea was proved. It is a question of fact, and in whichever of the particulars named, the county court- might have erred, it is an error that this court cannot correct. It is, also, insisted that there was error in admitting parol proof in relation to the agreement. The agreement was in writing, and was produced. There was proof of payment according to the agreement. This might be shown as well by parol as in any other way. And, ordinarily, there would be no other mode of proving the payment in any case, Further objection is made by the plaintiff to the pleadings ; [400] but it is enough to say that when parties make their pleadings, and join their issues, and take their trial without objection at the time, there can be no question raised before this court, in relation to their informality. Under such circumstances, whatever informality there may have been in the pleadings is understood to be waived. Judgment affirmed.