George W. Scott & Co. v. Sampson

9 Vt. 339 | Vt. | 1837

The opinion of the .court was delivered by

Redfield, J.

The .question of jurisdiction, submitted to the court for determination, is made by statute to depend wholly upon the amount of the “ debit side of the plaintiffs’ book;” How far the court might feel themselves justified in adopting a literal construction of this statute, if the matter were res integra, is not now to be inquired. It'has been adjudged that the court, before whom the suit is brought, may so far look into the character of the charges, constituting the plaintiff’s account, as to permit him to withdraw mere erroneous entries, which were not intended to form part of the account. Catlin v. Aiken, 5 Vt. Rep. 177. This is the case, were the party -never intended the charge should have been entered in the account. It.requires no argument to show the absurdity of the contrary doctrine. ' For although it may -be true, that no man ought to bo permitted to allege against his own act, it can hardly be contended that the error of any one shall deprive .him of an opportunity for repentance and restitution. In the case of Stone v. Winslow, 7 Vt. Rep. 338, it was .held that a mere right to claim interest on an account, which the party did not insist upon, could not be set up by the opposite party to oust the court of jurisdiction of the case It was decided in the case of Brush v. Hurlburt, 3 Vt. Rep. 46, that a mere fictitious offset could not affect the right of appeal. In a case decided upon the present circuit, a similar point to the one here discussed, was submitted to the consideration of the court. (Phelps & Bell v. Wood, Addison county.) The court had no difficulty there. We all felt very well satisfied with sustaining the jurisdiction of the justice of the peace. It is true, there may be a plausible ground of argument, that, as the legislature have seen fit to fix the criterion of jurisdiction, in actions of this character, in the plaintiffs book, it should be determined by that, and that only, and upon inspection of the book simply. But it is to be borne in mind, that the book is no part of the record, even after oyer and a formal profert. For the party may make profert of a mere transcript, and is, in no sense, bound by the account exhibited on oyer, so that the whole proceeding is, so to speak, “ a mere child’s play.” The court must, then, look out of the record to find the book, and must make some inquiry, so as to determine whether it be the plaintiffs book. And we find no difficulty in saying the court, before whom the suit is pending, may go farther, and ascertain whether the plaintiffs charges were understanding!}' made, and whether they were of a character, which he had a right to charge on book.

For if the charges were entered by mere mistake, ( Catlin v. Aiken,) or if they were of a character, not the subject of book charge, i. e. damages for tort or breach of contract, the price of real estate sold, money paid to be applied, but not applied, upon an outstanding contract, they do not become a part of the account by being entered there. It may be treated as a memorandum of a transaction, but can never be considered a charge in account. The “ debit side of the plaintiff’s book,” would be neither more nor less, on account of such entries. They should be treated, as in fact they are, to all intents, in relation to an account between party and party, as a mere nullity. This principle will apply with full force to the question under consideration. For the facts disclosed not only show that the plaintiffs had no good ground to charge the item brought from minute book,” to the joint account, but they had no possible ground of recovery, in any form of action, against the defendants jointly. The case is not different in principle, from what it would have been, if the plaintiffs had carried all their account against the defendants, separately, to the joint account, without consulting either of the defendants, or they had done the same by mere mistake, or to save time or space in posting. In neither of which cases, could it be contended, with much plausibility, that it formed a part of the joint account, so as to affect the jurisdiction of the courts,.

And in this case, the books, taken together, do not, in fact, show more than one hundred dollars originally charged to the defendants jointly, but simply a combining of the accounts in posting, without authority.

But even when it is conceded that the party makes the entries in good faith, and understandingly, expecting to recover the amount in the name of account, but is mistaken in his right, such mis-entry may always be corrected, either by erasure or credit, or in any other mode, (and the more obvious the original entry, the better for the credit of the book,) and the account is the same, as if such entries had never been made.

The judgment of the county court is, therefore, affirmed.