Bradley v. Chamberlain

Pierpoint, J. It is insisted by the defendant that the judgment rendered in favor of the plaintiff only entitles him to nominal damages. In order to determine the correctness of this position, it is necessary to inquire what the effect of that judgment is upon the rights of the parties. So far as the questions in this case are concerned, we think this judgment must be regarded in the same light that it would have been if it had been rendered upon a demurrer to the plaintiff's declaration. The same facts are to be regarded as conceded or established, and the defendant is to be concluded to the same extent in the one case as in the other. Every fact alleged in the declaration which it would have been necessary for the plaintiff to establish by proof, to entitle him to a judgment, is to be regarded as established by this judgment; indeed, the defendant virtually concedes this by admitting* that the plaintiff is entitled to nominal damages. What then was necessary in this case to entitle the plaintiff to a judgment, or in other words, what must he have proved under the general issue, in order to recover ? The plaintiff has alleged in his declaration, and must have proved on trial, the existence of the judgment in his fkvor against Tarbell, with its exact [472] description and amount, the issuing of an execution on that judgment, the fact that the defendant was a sheriff, the delivery of the execution to him or his deputy, and the neglect of the defendant or his deputy to collect and pay over the amount thereof, or to return it according to law. All this was necessary to entitle him to a judgment for any amount, and, when proved, clearly entitled him, prima fade, to a judgment for the whole amount for which such former judgment was rendered, and the execution issued. The same rule must apply in this case that would he applicable in an action upon a note of hand, or any other contract where the cause of action must be proved precisely as alleged, and when proved furnishes of itself a rule of damages. And in all such cases, when a judgment is rendered for the plaintiff, he is entitled to the amount of damages indicated by such rule, in the absence of all proof to vary it; and the form of action can make no difference in this respect. A variance between the proof of the judgment and execution, and the allegations in the declaration, would be just as fatal in this case as though the action sounded in contract. We think, therefore, that when judgment was rendered for the plaintiff, he was prima fade entitled to a judgment for the whole amount due upon the execution. Upon the hearing for the assessment of damages, it was competent for the defendant to vary this rule by proof. And in introducing that proof, he should be limited to such testimony as operates upon the amount of damages, and not upon the right of action only; he may show that the entire amount of the judgment has been paid, thus reducing the damages to a mere nominal sum. The same proof would have been admissible under the general issue to defeat a recovery, but is admissible after judgment, as in this case, only on the ground that it affects the damages. So on the other hand, evidence which only goes to the right of recovery is not admissible after- judgment, as the party is precluded by such judgment, as to that question. As in this case, the defendant did not introduce or offer any evidence tending to reduce the damages, and the plaintiff having shown that the entire amount of the execution had been collected by the defendant’s deputy, and that he had neglected to pay over [473] the money, or return the execution, it is clear that the defendant was liable for the whole amount. But it is insisted that the owners of the judgment, Mixer & Pitman, can recover in the name of this plaintiff only nominal damages. That Mixer & Pitman could have sued in their own names seems to be well settled. The case of McGregor v. Walden, 14 Vt. 450, fully established that doctrine in this State. But we think it equally well settled that they may pursue their remedy in the name of the plaintiff in the original judgment. The case of Chase v. Plymouth, 20 Vt. 469, is decisive on this point. Indeed, in an action of this character, when the fact is established that the plaintiff is entitled to a judgment for any amount, it is difficult to see why that judgment should not be for the whole amount of damages that result from the cause of action declared upon. The judgment of the county court is affirmed.