Bourke v. James & Kneeland

By the Court, Martin, J. We find no error in the record and proceedings in this case which calls for the interposition of this Court. While, it is true, as a general proposition, that settlement of accounts between parties is, prima facie, a settlement of all accounts, yet, as there was evidence in this case'tending to show that the demand for which this action is brought was expressly excluded from the settlement of the 14th of February, 1854, the Circuit Judge very properly left it to the jury to determine what was settled, and whether the facts attending the settlement showed a relinquishment of the demand in question by the defendants in error. The Court, also, properly refused to charge, that the custom sought to be established was unreasonable. This was a pure question of law, with which-the jury had nothing to do. User is the evidence of custom, and this is a matter for the jury, which the Court will submit or not, according as it shall find the custom sought to be established reasonable, and not illegal, or otherwise. Whether a general custom can establish a liability upon the part of a master for the contracts of his servant — a merchant for those of his clerk, is, to [339] my mind, extremely questionable; the general rule being, that, in such cases, liability depends upon direct authority, or special or individual custom. But, as this question is not presented, the Court expresses no opinion upon it. Nor was there error in refusing to set aside the verdict, and grant a new trial upon the reason assigned. It appears that the feet, that one of the jurors had sat in a former trial, was known to the counsel for the plaintiff in error before the verdict was rendered. It became the duty of the counsel to ask the interposition of the Court, as soon as that fact was ascertained by him. By neglecting to do this, and electing to risk a verdict, the party was bound by such verdict. This, moreover, is a question addressed to the sound discretion of the Court below, and cannot be ground of exception under our system of practice. Judgment affirmed. Present, Martin, Wing, Pratt, Copeland, Johnson, and Bacon, J., J. Green, J., did not sit in this case. Douglass, J., did not participate, having, decided the cause in the Court below.