| Vt. | Jan 15, 1831
pronounced the opinion of theCourt.— The memorandum in writing, if offered by itself, would not be admissible ; but it was offered in connection with parol evidence of the defendant’s concessions, that it contained the true contract between them. This makes it the same as if the defendant, instead of referring to the writing, had stated over to the witnesses just what is contained in this writing. The writing is presented as a part of their testimony ; and, as such, was correctly admitted. The want of coherence in the dtfferent parts of this writing, is slightly noticed by counsel. There is one expression in the writing, which, standing alone, would show, that the three notes to Johnson Foote were supposed not to exceed eighty three dollars ; yet, taking the whole together, it is clear, that this expression was intended to relate to one of the notes, only ; for, it goes directly on to describe two other notes,as being for fortytwo or forty three
The principal question seems to be, whether the action is within the jurisdiction of a justice of the peace. For, if the action was originally before a court that had no jurisdiction over it, the county court could have no appellate jurisdiction to render a judgement in favor of the plaintiff. The amount of the notes, or the consideration of the defendant’s promise, or the sum total of what defendant was to pay, by virtue of his contract, would clearly exceed the jurisdiction <sf a justice of the peace. Is this, then, to be considered as necessarily an entire contract, or virtually three contracts ? By reference to the written memorandum, it appears, that none of these notes had become payable, when the defendant made this contract, though all had become due, when the plaintiff was compelled to pay the one now in controversy. This was, then, virtually a promise by the defendant, that he would pay the first note when it should become due, and another promise with regard to the second, and another with regard to the third. Thi3 contract contains the most perfect analogy to a note for a given sum, payable by three instalments. In such case, certainly an action would lie" upon each failure ; and the jurisdiction would be regulated by the sum to be recovered in each action. And it forms no objection to these several actions, that they are all founded upon one consideration, large enough to support all the promises. The whole consideration and contract being set forth, the assignment of the breach brings one particular instalment, and that only, in controversy s and this as well'in reference to jurisdiction, as to the sum to be recovered.
It is urged, however,that all the notes to Johnson Foote had become due before the plaintiff commenced either of his actions. This does appear; but it also appears,that the plaintiffhadnot been damnified by the subject matter of the present action, when he commenced his first action ; and the plaintiff might well rest easy, till called on for payment. He might well suppose, that the defendant was performing all parts of his undertaking, till otherwise iniormed. Johnson Foote could call upon the plaintiff when he pleased, after the notes were due ; and the plaintiff,upon satisfying that call, had a right to seek his indemnity. If the plaintiff had beca compelled ,to pay all these notes at one time, he ought to
Our decision upon this point disposes of the remaining point also ; for, if the plaintiff has a right to Ms separate actions for his indemnity against the several notes, the judgement in one action can be no bar to another.
The judgement of the county court is affirmed.