Folsom v. Plumer

Sargent, J. The argument of the plaintiff’s counsel, that if the plaintiff’s note and interest, at the date of the writ, amounted to more than the defendant’s offset and interest to the same date, that his claim must of course remain the largest as long as the action continues in court, is incorrect upon the facts in this case. His reasoning would hold good if compound interest were to be reckoned upon both demands; or if the law authorized the making of a rest at the date of the writ, and adding the interest to the principal at that time, and then casting interest upon the whole amount from that date, either simple or compound. But we know of no authority for making any such rest in computing interest upon a note drawing simple interest only. On the contrary, juries are always instructed, in assessing damages, where the claim is a promissory note, to cast the interest on the note from its date to the time of verdict, and that this interest, added to the face of the note, is the proper measure of damages. The plaintiff’s note, in this case, only draws simple interest, and assuming the computations in the argument to be correct, and that the balance due the plaintiff at the date of his writ, or at the first term of court, was §1.70, and that a jury would have given him that balance at that time, yet, remaining in court four years, from March 1858 to March 1862, and then being tried, if the jury found on each item precisely as before, the balance must be some five dollars or over in favor of the defendant. It is, therefore, highly probable that the jury did not arrive at their verdict by allowing the claims on both sides, not for the reason assumed by the plaintiff, but directly the opposite ; not that if they had decided in that way the verdict must have been for the plaintiff for a balance of $1.70, or thereabout, with interest, but because they must in that way not only have found for the defendant, but have allowed a balance of $5, or thereabout, in his favor. It may not be material in this case to inquire whether the exception, that the question of payment was submitted to the jury, was seasonably taken, or whether, not being taken seasonably, it must be considered as having been waived, because we think that, admitting the exception to have been taken seasonably, it could not avail. Carey v. Bancroft, 14 Pick. 315, which is cited by the plaintiff' as a parallel case, and decisive of the present, was where the plaintiff' claimed that a note offered in set-off, by the defendant, had been paid by an agreement that it should off-set so far, and should be allowed in payment of a larger note which the defendant gave the plaintiff; but it was proved that the plaintiff, had, after such agreement to off-set, sold and transferred his note against the defendant, and the defendant had paid the same. The court held that after that the plaintiff should not be heard to claim that the contract was executed and application actually made, but that it was to be taken to be executory and never executed. In the case before us, the defendant has done nothing with his claims inconsistent with his present position ; he has neither sold nor attempted to collect them. When he was sued on this note he filed enough of them in off-set to meet the claim made against him, [472] but at the same time he testifies that they were all alike included in the agreement or settlement that was made. No objection is made to the ruling of the court or the instructions to the jury, provided there was any evidence competent to be submitted to the jury, tending to prove payment of the plaintiff’s note. Now the evidence tended to show that at the meeting between the defendant and Blaisdell, each claimed large demands against the other, the defendant’s claim, including his execution, being the largest, and that after some negotiations, “ they agreed to settle, that each should allow these* claims of the other, and that the notes, together with the difference between the other claims described, should be applied on the execution, and that the balance due after allowing their respective claims should be secured, and that the, defendant should discontinue his suit on the execution, previously commenced, and relinquish his attachment on Blaisdell’s property, which he then did.” The notes were present but not given up; the judgment was not present, and nothing was ever indorsed on it and nothing more done. Bid this agreement to settle constitute the settlement itself, or was it to be at some other time ? "Was the settlement and off-setting of claims agreed to there as made and executed, or was it an agreement as to what should be done in the future ? We think it might have been either; that it is not absolutely certain, from the evidence as stated, which was meant, and that this question was properly submitted to the jury. As it is the province of the jury to weigh the testimony of witnesses, and determine its effect, so it is competent for the court, in its discretion, where a contract is merely verbal, and there is doubt as to the precise language used, or as to the understanding of the parties, to leave it to the jury to judge what is proved, and what language was used, and how it was to be understood, subject to proper instructions as to the legal effect of such contract as they may find to have been made. Demming v. Foster, 42 N. H. 165. "While on the one hand it is evident that the security for the balance was not given then, and never has been since, from which it might appear more probable that the whole agreement was to be performed in the future, and had never been executed, yet the fact that the defendant thus discontinued his suit upon his judgment, and relinquished his attachment on Blaisdell’s property, looks very much as though the understanding was that the application had been already made, and the agreement executed. He was only to do this when the off-set of claims was made in payment of each other, and the fact that he then relinquished his security and dropped his suit would tend to show that he at least understood that the application of the claims in payment of each other had been made, and that they were all to be treated thereafter as paid and discharged so far. This question having been properly submitted to the jury as we think, we can not regard it as a case where, upon the authority of Wendell v. Moulton, 26 N. H. 41, we are called upon to set aside the verdict as being against the evidence. Judgment on the verdict.