46 Vt. 462 | Vt. | 1874
The opinion of the court was delivered'by
The statute allowing “ an item or items of account ” to be adjudicated in an action of book account, we do not think was intended by the legislature to merge the action of account in that of book account. To give it that effect, would be to place a forced and uncommon construction upon the language of the statute. If the legislature had intended to have given such scope and effect to the statute, it would have used language bettor adapted to that end. It could as easily have worded the statute so as to read — all matter proper to be settled in an action of account, may hereafter be settled in the action of book account. By limiting the effect of the statute to “an item or items of account,” it intended that if in settling a proper book account between two parties, it should be found that one or two, and perhaps more, of the items at issue between the parties, were proper to be adjudicated in an action of account, these items should not be omitted from the accounting, and made the subject of a separate action, but might be settled in the action then pending between the parties. It is entirely foreign from the language and spirit of the statute, to allow a party whose main subject of controversy is properly a matter of account, but who has a few items of book account disconnected with, or arising incidentally out of, the principal subject-matter, to bring in, and settle in book account, the principal subject in controversy, which is proper to be settled in an action of account. This is substantially the construction which has been placed upon this statute by the former decisions of this court. In this case, the principal subject of controversy arises out of the lease under which the defendant