Chamberlin v. Murphy, 41 Vt. 110

Chamberlin v. Murphy

41 Vt. 110 | Vt. | 1868

The opinion of .the court was delivered by .

Steele, J.

When the defendants marked their cause “ not for the jury,” they thereby submitted that judgment should pass against them in case thpy should fail upon their motion for a continuance, which was Addressed to the discretion of the county court. They did fail, and accordingly a judgment was rendered. The defendants thus lost their legal right to a formal trial by either court or jury upon any branch of the case, eyen the damages. After this failure to sustain their motion, the court could render final judgment against them, causing the damages to be assessed by the clerk in the usual manner in cases disposed of without trial. Still the mode of determining the damages was under the control of the court, and they could, in their discretion, direct that they should be assessed by the court or even by the jury upon trial, and might continue the cause for that purpose. Such was the course pursued in this case, and the exceptions before us were reserved upon the jury trial which was thus had upon *117tbe question of damages after a judgment had passed for the plaintiffs on the main question.

The first point for consideration is whether that judgment had any effect to limit the defendants’ right in the introduction of evidence tending to lessen the amount of the plaintiffs’ recovery; in other words, whether upon this trial the defendants were at liberty to prove a substantial affirmative defense to a portion of the plaintiffs’ damages.

We have no occasion to question the.doctrine of Chipman, J., in Barney v. Groff et al., 1 D. Chip., 308, that a regular judgment,, while in force, is usually as conclusive against defenses to the damages or any part of them, as against defenses to the right to recover.

This, however, has no application to a judgment which is, not final, and does not profess to settle or adjudicate the damages. The judgment in this case was not final, but in its nature was preliminary or interlocutory. It professed to settle the plaintiffs’ right to the recovery of something, and it professed to leave open for trial the question of how much. Whether the plaintiffs were to recover damages merely nominal, or more, was, we understand, just as fully open for trial and evidence úpon both sides, as if the preliminary judgment had not been rendered. Either party might introduce any evidence relevant to that question; but, to adopt the language of Pierpoint, J., in Bradley v. Chamberlain, 31 Vt., 468, evidence which only went to the right of recovery, was pot admissible after the judgment, because the party were precluded by such judgment as to that question. It was not, however, any valid objection to evidence which was relevant to the question of damages, that it would also have been legitimate upon the main question if that had been tried. Such evidence must be received and weighed so far as it relates to the question still open. It not unfrequently happens that evidence which might, if used, have been available to prevent a judgment, may, after judgment, be available to reduce the damages to a mere nominal sum.

Having determined that any evidence relevant to the subject of damages, was, notwithstanding the interlocutory judgment, admissible, the remaining question is whether the evidence excluded in *118this case, was relevant to that question. The defendants and their co-trespassers had incurred a liability, in its nature joint and several. The plaintiffs had in fact but one cause of action, but they were at liberty to pursue it against as few or as many of the co-trespassers as they should choose. They might sue them separately or together, but very obviously they were not entitled to more than one full satisfaction. The first piece of evidence which was excluded against objection, was the receipt for $65 given by the plaintiffs’ attorney to the estate of Simonds, one of the co-trespass-efs. This receipt by its terms shows that the plaintiffs’ damages have been satisfied to the extent of $65, and the defendants had a right to insist upon its application to reduce the plaintiffs’ recovery pro tanto. To hold otherwise would be to permit the plaintiffs to recover for this portion of the damages twice. If they had received this sum in full satisfaction for their injury, it would have reduced the plaintiffs’ recovery to a nominal sum, but they having received it as they did, not in settlement of the cause of action, but merely agreeing to prosecute this trespasser no further, it will only reduce the recovery pro tanto. It was not pleaded in bar of the action, and, if it had been, would, under all the authorities, have been no defense to a recovery. Such is the force of the decision in Spencer v. Williams et al., 2 Vt., 211, approved and indorsed by Pierpoint, J., in Eastman v. Grant et al., 34 Vt., 389. This evidence went to the question of damages. It does not even appear that it could go to any other, and it should have been received.

But the defendants had also pleaded a technical release under seal of the cause of action, which they alleged was given by the plaintiffs to another of the co-trespassers. This release-, if not answered, would have barred all recovery. The plaintiffs do not deny in their replication that they received pay of this party, but say that the release was procured by fraud and surrendered. The defendants offered this release as evidence upon the question of damages, and it is urged that it was properly rejected, because the judgment upon this pleading establishes the fact that it is •fraudulent. Even conceding that as a release it is fraudulent, and that the parties intended it, as the replication avers, only as a *119receipt, it is still admissible to show what compensation the defendants therein admit that they have received. But we do not understand that, upon the assessment of damages after a judgment passed without trial after a failure to procure a continuance, the court look into the pleadings to determine what evidence shall be received. The judgment has not been perfected so 'as to become a bar. Suppose the plea had been accord and satisfaction, and judgment had thus passed for the plaintiffs. We think the defendants might have proved complete payment to reduce the damages to a nominal sum. As said in Bradley v. Chamberlain, 31 Vt., 468, the case stands as if judgment had been rendered upon demurrer to the declaration. It would seem, therefore, that they might introduce a release, not as a release of the action, but as evidence upon the subject of some payment by the party to whom it is given, and, if it purported to acknowledge full satisfaction, it would, unless rebutted, reduce the damages to a nominal sum. If rebutted so fa.r as to show there was no full satisfaction, it would still reduce the damages to the extent to which it was payment. We think, therefore, there was error in rejecting this evidence."

It is only necessary to add with reference to a new trial, that we do not hold, as claimed by the defendants, that this evidence as to the amounts which the. plaintiffs received from Simonds, was admissible for the purpose of affording a measure or rule of damages. What is done by way of settlement or compromise, is never admissible for that purpose. It is quite as probable, that the plaintiffs fixed the sums they would insist upon from the defendants’ co-trespassers, with reference to their opinion of the degree of relative culpability to be attached to them, as with reference to their own injury. They expressly reserved their cause of action. The defendants, being legally liable for the whole, are not entitled to complain that the plaintiffs do not pursue others, or have collected less of others than they seek to recover of them. It is their good fortune that the plaintiffs have collected anything of others. If the plaintiffs have not been fully satisfied for the wrong done them, the defendants can only insist that whatever their co-trespassers have done toward it, shall apply pro tanto, and they are *120liable for the balance; and, as it may bo a question of fact whether one of the sums received was not received in full payment for the entire injury, the application can not properly be made in this court.

The judgment of the county court as to damages, is reversed, and cause remanded for new trial upon that subject.

Peck, J.

It seems to me that the partial payment should have-been pleaded. In all other respects I concur in the views expressed in the opinion which has been read.