46 N.H. 509 | N.H. | 1866
The suit was brought to April Term, 1863, and on motion of defendant the plaintiff was ordered to file his specification in thirty days, and the order from time to time renewed, but not complied with, until November Term, 1865, when, under the count for money had and received, which was the only count, a note of the defendant for $13.08 was specified.
On trial upon the general issue, it appeared that this note was paid July 3, 1865, but, as this payment was not pleaded in bar of the further maintenance of the suit, as it should have been, it could not avail the defendant as a defense to the action. Pemigewasset Bank v. Brackett, 4 N. H. 557; Williams v. Tappan, 23 N. H. 385. We, however, think it may avail the defendant in mitigation of damages as suggested in the cases cited, the same as partial payments made since the suit and endorsed on a note, or the return and acceptance of goods in whole or in part, after an action of trover was commenced. So a discharge or release after suit has been received in mitigation of damages, though not pleaded. Abbot v. Chapman, 2 Lev. 81; Beckford v. Clarke, 1 Sid. 236; see note to Watson v. Christie, 2 B. & P. 224, 225.
In Lincoln v. Bassett, 23 Pick. 154, it is held, per Shaw, C. J., that any payments made since the commencement of the suit, even up to the day of the trial, may be given in evidence to reduce the damages.
The judgment, then, for nominal damages, was properly ordered, and we are satisfied with the direction as to the limitation of costs; that is, that the plaintiff take only the costs of the first term.
Judgment for plaintiff.
