Ford v. Hubinger

Andrews, C. J. There was no error in sustaining the demurrer to the defendant’s plea in abatement. The cases cited by his counsel are not in point. Dyer v. Smith, 12 Conn., 384; Doolittle v. Clark, 47 id., 316. In those cases it was the act of the party which rendered the proceeding void. The jurisdiction of the court was not challenged. If it had been averred in the plea that the plaintiff had done or attempted to do some improper act, doubtless the court could declare the whole action void. But the opportunity to do wrong which the servant or officer of a court has, does not deprive the court of jurisdiction. In respect to the request for instructions to the jury there' is error. If the plaintiff had accepted payment in full, that was a bar to his recovering anything more. The receipt of a payment tendered and accepted in full was a discharge of his entire claim. Aborn v. Rathbone, 54 Conn., 444; Grates v. Steele, 58 id., 316; Buell v. Flower, 39 id., 462; Ayer v [133] Ashmead, 31 id., 447; Beam v. Barnum, 21 id., 200; Canfield v. Eleventh Sch. Dist., 19 id., 529; McGuire v. Lawrence Mfg. Co., 156 Mass., 324. The request was apparently predicated on the law as laid down in these and other like cases, and it should have been complied with in the very words in which it was made, or in equivalent words. If the defendant satisfied the jury that he had made such a payment as he claimed to have made, he was entitled to have them told explicitly what its effect would be on the plaintiff’s right to recover. This was not done. The instructions given implied that the payment, although the jury should find that it was made and accepted in full of all claims, would not preclude a further recovery unless it should also appear that the services which the plaintiff had rendered did not in any way facilitate the subsequent purchase of the property. Each time the judge alludes to this payment in the charge he couples it with this condition. It is, perhaps, true that the judge didn’t get the entire meaning of the request in looking it over. The defendant contended that he had made a payment to the plaintiff in September, 1891, to be iu full, and which the plaintiff accepted in full of alb the matters claimed in the action. If such a payment was made, then the defendant owned all the services which the plaintiff had rendered, and might make such use of them as he chose or as he found advantageous. He might rightfully, and without further liability to the plaintiff, use such services in facilitating a purchase of the property. If such a payment had been made, then the plaintiff had parted with, and the defendant had acquired those services, as fully as though the plaintiff had sold to the defendant some tangible thing, as barrels of flour or tons of coal. The jury should have been told that in such case their verdict must be for the defendant. There is error and a new trial is granted. In this opinion the other judges concurred.