Curtis v. Egan

53 N.H. 511 | N.H. | 1873

Doe, J.

If the entry “ neither party” was a judgment or the foundation of a judgment that would bar this action, the defendant cannot avail himself of it as a bar under the general issue. Therefore it is not necessary to inquire whether that entry, and the judgment rendered thereon (in whatever form, judgment should be rendered), would be a bar if specially pleaded.

The defendant offered the evidence of the former suit and the proceedings therein, “ as tending to show a settlement of the cause of action.” By “ settlement,” we understand is meant payment, or accord and satisfaction (which may be set up under the general issue in assumpsit — 2 Gr. Ev. sec. 29), or something» equivalent to accord and satisfaction, admissible as a defence under the general issue. If “ N. P., ” considered as a judgment, were a bar, it would be so whether satisfied or not, and however the parties understood it. But the defendant claims that, although “N. P.” would not, in all cases, necessarily be a bar to another suit for the same cause, the record “ N. P.,” and the agreement to have that record made, is evidence tending to show an executed agreement of the parties that, in consideration of the defendant abandoning his claim for costs, the plaintiff would prosecute his claim no further, and the same should be considered paid or discharged.

If, before suit, the parties had settled, without writing, each claiming to have a demand against the other, and agreeing to offset one against the other, and to consider both paid and discharged, that would be a good settlement, and binding, whether it came under the technical appellation of payment, accord and satisfaction, or release, or under no particular head usually found in the books. It would be a substantial discharge of mutual claims, or an application of each in payment of the other : the claims being mutual, there would be a consideration for the mutual discharge. And there seems to be no reason why such a discharge or application should not be shown under the general issue, as well as payment, or accord and satisfaction, if it would not come under either of those heads. On the same ground, we think, the abandonment and discharge of the defendant’s claim for costs was a good consideration for the abandonment and discharge of the plaintiff’s claim for debt and costs; and both claims were discharged and cancelled, or paid by mutual application, if both parties so understood it. The evidence offered by both parties was admissible.

New trial granted.