Olcott v. Hanson

Martin Ch. J. : That the Court erred in refusing to allow the defendant to prove the payment of five dollars upon the note in suit, because it was not included in his bill of particulars, is unquestionable. Payment can always be proved as a matter of direct defense. Except in this particular, the jury were in no way misled on the trial. But while the case was still within the control of the Circuit Court — for it had suspended all further proceedings therein until the 24th of August — and evidently during the same term, leave was granted, on the 24th of August, to the plaintiff to remit the amount of five dollars from the judgment. This cured the error, unless the indecent haste of suing [455] out the writ of error before the party was entitled to it, as I think — unless two courts can have jurisdiction of the judgment at the same time — and procuring a return to the writ within three days after its service, and while the cause was suspended in the Circuit Court, secured to the plaintiff in error some undue advantage. I think it did not. There was no error in the manner of taking the verdict. The jury had agreed upon it, as the amount due on the note; but by some accident they had no data from which to compute that amount. When instructed by the Court that they must find a sum certain, and were informed in open Court of the sum, they rendered their verdict accordingly. They acted in good faith, and honestly; and there is no pretence of corruption or intermeddling. It is true that a jury who are permitted by the Court to disperse after having found and sealed a verdict, can not disperse before one is found; but no formal verdict is ever expected to be found. That is put into shape in open Court; and I see no objection to their coming into Court, as in this case, saying that they find for the plaintiff the full amount claimed upon the note, and upon receiving information from the Court, or of counsel in the presence and with the approbation of the Court, amending their verdict accordingly. The paltry amount in controversy of itself would incline me to let the verdict rest, ■unless I could see some important principle of the law had been violated. I think the judgment should be affirmed.] Campbell J.: I agree with my brethren that there was error in rejecting proof of a payment of five dollars, on the note sued upon. But I cannot perceive how a defendant in error, who has taken a judgment founded on such an erroneous ruling, can [defeat the jurisdiction of this Court by [456] indorsing down his judgment after error brought. Neither is it manifest that justice has been done by the reduction. In rejecting this item, the Court did it on the ground that no items of payment could be received without notice. A party after such a ruling is not obliged to offer proof of further items, and no presumption can be raised that he had no further, proofs to offer. The small amount in controversy may render it improper, in a moral point of view, for parties to protract litigation; but, until our jurisdiction is limited, I think we have no right to declare any controversy allowed by law as infra dignitatem. I think the judgment should be reversed. Christiancy J. : By rejecting the item of payment in question, on the-ground that it was not contained in the defendant’s bill of particulars of set off, the Court in effect denied the defendant the right to prove any item of payment without notice. We can not therefore say what other payments, may have been excluded by this ruling. On this ground I concur with my brother Campbell that the judgment should be reversed. Manning J. did not hear the argument. Judgment reversed.