Clough v. Clough

26 N.H. 24 | Superior Court of New Hampshire | 1852

Gilchrist, C. J.

If we test the brief statement by the rules which regulate a plea of a tender, it will be found to be informal, for it is not averred that the defendant was always ready and willing to pay the money. The defendant must be always ready to pay, and state that circumstance in his plea of tender. It is not sufficient to state that the defendant is and always has been ready to pay, but he must also say that he tendered and offered to pay. Birles v. Trippet, 1 Saund. 33, note 2. The plea must show that the defendant has always been ready to pay the money from the time when it first became due. Hume v. Peploe, 8 East 168; Chitty on Pl. 923.

But the brief statement, inartificial and pointless as it is, cannot be rejected because it does not contain the precise and clear averments of a plea of tender. It is generally more difficult to ascertain whether there is any substance in a complicated and confused brief statement, than to determine any ordinary question of special pleading. A careful examination of this brief statement discloses some matters of substance. It alleges a tender before action brought, and that the defendant is liable for no more than the amount tendered, because the damages he sustained by the plaintiff’s breach of contract were equal to the residue of the plaintiff’s claim. It states, also, that ,the money was paid into court for the plaintiff. Now although informal and defective as a plea of tender, it cannot be rejected if it contain a brief statement of the matter of the defence, and, therefore, equivalent under the statute, to a plea of tender. A question somewhat similar to the present one, at least in principle, arose in Robinson v. Wadsworth, 8 Met. 67. It was there held that where a specification to which a party was entitled, was bad for generality, it should be objected to before trial, but if not so objected to, it cannot be treated as a nullity, but the party who files it may give in evidence the particulars of that which is therein stated generally. We think the statement was sufficiently precise to authorize the evidence of the tender to be given under it.

It is said that the contract to labor is void for uncertainty. But the testimony is very much to the point, and two witnesses testify positively to the statement of the plaintiff that he was to work for eight months, at $13 per month, which is the same contract specified in the brief statement, excepting that there the price is not stated.

The instructions of the court were correct. The plaintiff was entitled to recover a reasonable compensation for his services, over and above the sum tendered and received by him, and the damages sustained by the defendant, by reason of the plaintiff’s violation of his contract, and this is the substance of the instructions.

There is no reason why the written verdict returned by •the jury should not be explained. As it was returned, it needed explanation, and the parties are surely entitled to know the finding of the jury upon the case submitted to them. A verdict declared orally is as valid as if reduced to writing and signed by the foreman ; and if this had been an oral instead of a written statement of the finding, the jury might have been asked to explain it. If in any particular a verdict be defective, so that the courts are not able to give judgment thereon, they will amend it, if possible, by the notes of counsel, or even by an affidavit of what was proved on the trial. Tidd’s Practice 897. If a verdict be so uncertain that it cannot be clearly ascertained whether the jury meant to find the issue or not, it cannot be helped by intendment. Jewett v. Davis, 6 N. H. Rep. 518. But the question here was not what construction the court could put upon the verdict, but what the jury, upon being inquired of, meant by it. And although the inquiry was made after the jury had been permitted to separate, but, as we presume, in the presence of the parties, no objection was taken on that account. It is often the case, in our practice, that the jury return a verdict for the plaintiff or the defendant merely, and it is then reduced to form.

Reporter’s Note. — Through a mistake of the printer, the preceding case, Clough v. Clough, does not appear in its proper place in the volume. It belongs among the cases of Grafton county, which immediately follow. This error was not discovered until the first part of the case had been printed.

It is said, in the argument, that the written verdict differed from the oral one, and that the sum of $10, found for the defendant, added to the sum admitted by the plaintiff to have been paid, and deducted from the amount of wages admitted by the defendant, would have left a balance due the plaintiff. But it does not appear so from the case. The plaintiff claimed the sum of $14,31, according to the statement of the accounts, which was agreed to be correct. The defendant tendered the sum of $4,31, and retained the $10 on account of the damages he had sustained, and the jury found that hi's damages amounted to the sum of $10. The defendant has thus accounted for the sum of $14,31, in part, by the verdict, and as to the residue, by payment, and there is no reason for the maintenance of the action against him.

Judgment on the verdict.