Phelps v. Town

Ohristiancy J. The certificate of deposit was by its terms payable “in currency.” Prima facie, at least, this must be held to mean money current by law, or paper equivalent in value circulating in the business community at par. Such, we think, is the general signification, the fair import and ordinary legal effect of the term. "Whether it would have been competent to prove that the term had acquired, by local usage or custom, a different signification at Chicago, which, by the laws of Illinois, would be recognized for the purpose of giving a different interpretation to the contract, we are not, in the present aspect of this case, called upon to decide, as it does not appear that any such evidence was given or offered, and we prefer to reserve our opinion upon the point until the question shall be presented in such a manner as to call for a decision.-See Ehle v. Chittenango Bank, 24 N. Y. 548; Swift v. Whitney et al. 20 Ill. 145; Moore v. Morris, Id. 255; Trowbridge v. Seaman, 21 Id. 101; Marine Bank v. Chandler, 27 Id. 525; Osgood v. McConnell, 32 Id. 74; Marine Bank v. Rushmore, 28 Id. 463; Fire and Marine Ins. Co. v. Tincher, 30 Id. 399. The question put to the witness Preston did not call for evidence of any such local usage or custom, or of any local signification thereby acquired. He was asked, “ what kind of money the certificate was payable in,” without referring to any local custom or usage;. and, as such, the question was one [380] purely of law, and it does not appear that he was an expert or in any manner competent to testify as to the laws of Illinois. So far as the record discloses anything upon this point, it furnishes an inference that he was not comjjetent for this purpose; he is stated to be a banker in the city of Detroit. To make such a question admissible, it should appear that he was' conversant with the laws of Illinois in relation to this question. His answer did not tend to correct the error of the question, as it does not allude to any local usage or custom, or any local or peculiar signification dependent thereon. This question being objected to, the Court erred in admitting it, and allowing the answer to go to the jury; for though it does not appear whether any, or what other evidence was given in the case upon this point, still, as we cannot say how far the jury were influenced by this improper evidence, this error vitiates the special verdict; and a new trial must be granted on this ground. For these reasons we do not deem it proper to pass upon the questions depending upon the facts found by the special verdict in reference to this point, as a new trial may present quite a different state of facts. But there is one point not dependent upon the special verdict which will naturally arise upon a new trial, and which, for that reason, we deem it proper to notice here. This cause was appealed from a Justice’s Court to the Circuit ; and it appears from the return of the Justice that the defendants had “ pleaded the general issue, and payment into court of $43 -jVo- balance due plaintiffs, and two -ffo dollars costs of suit in the case, to the time of payment.” It is not to be supposed that the Justice would have noticed or allowed such a plea unless the money was in fact paid into court. And as it is apparent from the judgment rendered by him, and the proceedings in the Circuit that he received the plea and found the sum so paid into court to be all that was due the plaintiffs, we think his return equivalent in effect to a direct and positive return of such payment. This fact is also found by the special verdict, but the Circuit Court, in [381] rendering judgment upon the verdict, did not allow to the defendants the amount so paid; on the ground, as we suppose from the argument, that the money was not returned by the Justice, and not paid into the Circuit Court according to the practice of that Court in actions originally brought there. This raises the question, whether it is competent for a defendant in a Justice’s Court to avail himself of a payment into court in the like classes of actions in which it would be competent for him to do so in the Circuit Court; and if so, what is the effect of such payment ? The statute conferring jurisdiction upon Justice’s Courts provides (Comp. L. § 3656), that “ each of said courts is hereby vested with all such powers for the purpose of exercising jurisdiction conferred by this chapter, as are usual in courts cf record, except the power of setting aside a verdict and arresting judgment thereon.” And having given to such courts exclusive jurisdiction to try all civil actions (with certain specified exceptions) wherein the debt or damages do not ■exceed the sum of one hundred dollars, and concurrent jurisdiction in all actions upon contract, express or implied, wherein the debt or damages do not exceed three hundred dollars, (except in specified cases), we think it is but reasonable to infer the legislative intent to give to defendants in such actions the benefit of the same defences to which they would be entitled in similar actions in courts of record. The organization of the court does not require or permit the same formal mode of procedure, upon payment of money into court, as that practiced in courts of record. The Justice has no clerk and no common rule book. His court has no stated terms or vacations. In courts of record, as the money is not often paid in open court, but in vacation at, or prior to, the filing of a plea, .and is never paid to the Judge but to the proper subordinate officer of the court (in this country to the clerk), the entry of rules and -orders is highly proper to preserve the evidence of the faet, as well as to hold such officer to his responsibility. But n.® consideration of this kind or of convenience requires [382] such a procedure in a Justice’s Court. The money may be paid directly to the Justice in open court, who receives it in his official capacity for the plaintiff, to whom it belongs, and to whom he is bound to pay it upon request. No rule or order is requisite when paid at the time of, or prior to the plea; if after plea, a motion should probably be made for leave. When paid to the Justice in open court, the effect upon the rights of the parties is the same as when paid in a court of record under the practice there prevailing. It belongs to the plaintiff absolutely. The defendant cannot reclaim it, though paid by mistake. So much of the plaintiff’s claim is considered as stricken out of the declaration, and he can only recover the balance, if able to prove any; if not, he will be liable to. all costs in the further prosecution of the suit. The money in this case, after its payment to the Justice, being the money of the plaintiffs, we can see no reason for holding defendants thereafter to any responsibility for its disposition or payment. We think they have no further concern with, or control over it. The plaintiffs were entitled to demand it of the Justice at any time, and their refusal or neglect to do so, or their failure to obtain it, cannot affect the further proceedings in the suit, or the rights of the parties one way or the" other. The judgment must be reversed, with costs, and a new trial granted. The other Justices concurred.