Hyperlawhypertext legal database Pierce v. Delamater 1 How. App. Cas. 1

← Cases

Pierce v. Delamater

1 How. App. Cas. 1 Court SEPTEMBER TERM, 1847. English

Delivered by *3 Jewett, Chief Judge,

Contents

Majority

p. 1
SEPTEMBER TERM, 1847.
Pierce, plaintiff in error, agt. Delamater, defendant in error.

Headnote

Questions Discussed.
1. The sufficiency of evidence to authorize a recovery under a count, for an account stated;
2. The effect of the admission or confession of a party, .when resorted to as evidence against him;
3. The sufficiency of admission to authorize judgment;
4. Whether credit and effect should he given to defendant’s statement “that he had a set off,” where it was made at the time he admitted the correctness of plaintiff’s account?
Delamater sued Pierce before a justice of the peace, and declared on an account for services rendered and an account stated— bill on file. The defendant did not appear. The plaintiff called Jonas Dinegar as a witness, who testified that he drew off the account from the plaintiff’s books, and sent it to defendant; that the defendant called soon after at the plaintiff’s store and said he wanted to settle; witness showed defendant plaintiff’s books, and said he was authorized to settle. Defendant said the account was correct, but he had an off-set.
This was all the testimony, and the justice rendered judgment in favor of the plaintiff for $84*12. 1
p. 2
The account as made out and shown to the defendant amounted ■to $194T2¿, and contained credits amounting to $110, leaving a balance of $84T2§. The justice’s judgment was reversed by the ■Columbia Common Pleas, and affirmed by the Supreme Court.
R. E. Andrews, for plaintiff in error.
The judgment of the justice was against evidence, in that:
I. There is no evidence ‘of an account stated, and no other count in the declaration under which the judgment could have been recovered (1 Cow. Tr. 3d ed. 265-6; Kirton v. Wood, 1 Moody and Rob. 253 ).
II. It can not be inferred from the evidence that it was Pierce’s intention to admit that he owed the amount claimed by Delamater (Polk’s lessee v. Robertson, 1 Tenn. Rep. 463 ; 1 Cow. and Hill’s Notes, 210; Law v. Merrill, 6 Wend. 268 ).
III. The admission was too vague to authorize a judgment .(Quarle’s adm’x v. Littlepage, 2 Hen. and Munf. 401; 1 Cowen and Hill’s Notes, 199, 213).
IV. Credit and effect were not given to the discharging part, of Pierce’s admission (Cudner v. Dixen, 10 J. R. 106; Squire v. Gould, 14 Wend. 159 ; Kelse v. Bush, 2 Hill, 440 ; 1 Cow. and Hill’s Notes, 224, 227, 228, 230, 231; 2 Steph. Nisi Prius, 1600; Jacobs v. Farrell, 2 Hawks, 570 ; Walden v. Sherburne, 15 John. Rep. 413 , 414, 424).
C. L. Monell and H. Hogeboom, for defendant in error.
I. The testimony of the witness Dinegar, was sufficient to authorize the judgment (Error Book, folio 14).
Although the whole declaration of a party must be taken, a jury may credit part and discredit another part (Smith v. Hunt, 1 McCord, 449 ; Turner v. Child, 1 Dev. 133 ; Methodist Epis. Church, et al. v. Jaques, 3 J. C. R. 115; Kelsey v. Bush & Viele, 2 Hill R. 440; Dean v. Pitts, 10 J. R. 35).
II. The admission furnished all the evidence of the correctness of the account that the law requires, and the defendant was bound to establish his offset by testimony.

delivered an oral opinion substantially as follows: This cause originated in a Justice’s Court. The judgment of the justice was reversed by the Common Pleas of Columbia county, and affirmed by the late Supreme Court.

The plaintiff declared in the Justice’s Court on account for services rendered, and an account stated—bill on file. The defendant did not appear in any stage of the proceedings, a bill of items was presented by the plaintiff, containing items for work, labor, and services done and performed, and materials furnished, and goods and chattels sold. This bill formed a part of the declaration, and we think that the counsel for the plaintiff in error is mistaken in the law, that this declaration was not sufficient to sustain the judgment under the proof. We think it is; but the plaintiff in error insists that the proof is insuffipient; that the whole admission of Pierce must be taken together; and that taking it together, it does not make out the case of the plaintiff below. The witness states that he copied the bill from the books of the plaintiff, and sent it to defendant. This bill amounted to some §194, and contained credits amounting to about §110, leaving a balance of §84'12 due plaintiff. A few days afterwards defendant called at plaintiff’s store and said he wanted to settle; witness showed defendant the books of plaintiff, and said he was authorized to settle with him; defendant said the account was correct, but he had an pffset. Nothing was said by defendant as to the nature or amount of his offset; it might have been §40, or it might have been §1; and it was his duty to have exhibited by proof the amount of it before he could avail himself of it to reduce the plaintiff’s claim. There wTas sufficient in the admission to establish the correctness of the plaintiff’s claim, and that was all the law required. The defendant did not make out a set-off by saying he had one, and his omission to prove it on the trial authorized the plaintiff to recover the whole amount of his bill. We think the Supreme .Court were right, and that the judgment must be affirmed.

Judgment affirmed, unanimously.

Reported in the Supreme Court, 3 Denio, 315 . Reported in this court, 3 How. Pr. R. 162.

p. 4
Note.—The whole confession of a party, when resorted to as evidence against him, must be taken together, although it does not follow that all is entitled to credit.

The part of a confession which it is claimed makes against the party calling it out, must he certain and full; and enough to constitute a'defence if proved by other testimony.

Hence, where a defendant admitted the correctness of an account that was shown him, but at the same time said he had “ an offset,” held, that the plaintiff’s case, was made out, and defendant was bound to prove his set-off on the trial.

Cases cited