Oliver v. Phelps, 21 N.J.L. 597

Oliver v. Phelps

21 N.J.L. 597 | N.J. | 1845

The opinion of the court was delivered by

Carpenter, J.

Most of the matters assigned for error upon the charge of the judge, may be passed over without remark. The exception to his charge is general. There is no specifica*609lion on the face of the bill of exceptions, of the particular errors alleged, and it does not appear that on the trial, the matters assigned for error upon this charge, were ever brought to the notice of the judge. It does not appear that his attention was ever called to those parts of his charge now alleged to be erroneous, so that he might, if any error, correct it and obviate the objection. Yo party ought to be allowed to surprise or mislead his adversary, nor ought he to be allowed, here for the first time, to raise a point which might have been obviated, had it been made in the court below. Rutter v. Chapman, 8 M. & W. 37; Camden v. Doremus, 3 How. 530; Smith v. Craig, 2 Barr. (Penn. R.) 153; and cases cited in the opinion of the Chief Justice below. Spenc. Rep. 181. Such is the general rule in regard to bills of exceptions, and such an exception in gross to the charge, has in the Supreme Court of this state, as well as elsewhere, been treated as no exception at all. In the late case of Potts v. Clark, Spenc. 536, on error, the Supreme Court, on this ground expressly refused to consider the assignments of error upon the charge of the judge not specifically pointed out on the lace of the bill. So far as it depends upon me, this practice will be adhered to in this court, and on more than one occasion, other judges have given a similar intimation. Without such restraint, bills of exception would be but traps to surprise and mislead an adversary, and not a means for the attainment of justice. Most certainly we ought not under such an exception, in our examination, to go beyond the substance of the charge, and ought to review only those doctrines which formed the direct point in the judgment, and were decisive of the cause.

In regard to so much of the charge of the judge, as relates to the construction of the 13th section of the Act concerning Distresses, (Rev. Laws. 203,) if permissible to examine it, we hold his construction to be sound. This section is copied from the 21st section of the statute of 11 Geo. 2. c. 19, which has always been construed to permit the landlord, w'hen sued in trespass by his tenant, to give the special matter in evidence under the general issue, only when the distress was made upon the demised premises. Although the cases cited upon the English Statute were but nisi prim decisions, yet They have been acquiesc*610ed in for many years, and stand unquestioned by any authority which can be produced. This construction was assumed to be law in the late case of Eagleton v. Gutteridge, 11 M. & W. 465, 469. Looking at the words of the statute, they do not seem susceptible of any other construction.

A principal point in this cause, comes up upon exceptions taken to the admission of testimony in relation to an agreement, alleged to have been made by the defendant, that he would send his daughter to, the school of the plaintiff, and that the tuition should go on account of the rent: a promise said to have been made prior to the execution of the lease. This evidence was offered in connection with other facts which the plaintiff undertook to prove, as, that the daughter did attend the school of the plaintiff in pursuance of this agreement, &c. It is the competency of this testimony, whether it should have gone before the jury at all, and not its weight, or the credibility of the witnesses, that now becomes the subject of our review. Now the doctrine of accord and satisfaction, or the deliverance and acceptance of any particular thing, (indeed in many cases of any particular sum of money) is not to be questioned at the present day. Such delivery, and acceptance in satisfaction, will be a good defence to an action on a money bond or on a covenant for the payment of money. The point here comes up somewhat differently from the case supposed, but it depends upon the samé general principles. The defendant in this action, under the general issue, justified as distraining for rent due and unpaid ; and the plaintiff to rebut this defence, undertook to show that the defendant was not entitled to distrain, because, as he alleged, the rent had been paid. He alleged that in part it had been paid by services, rendered by the plaiutiff to the defendant in the tuition of his daughter, given aud received in payment and discharge of so much of the rent; and that the balance had been paid by a check on the Rahway bank, received by the defendant, and the amount carried to his credit on the books of the bank. In connection with 'the offer to prove the amount due for tuition, &c., the plaintiff offered to prove, that prior to the sealing of the lease for the demised premises, the defendant, by way of inducement to the taking of the prern*611ises, agreed or promised that he would send his daughter to the plaintiff’s school, and that the tuition should go ou account of the rent. It is not perceived that this evidence tended in the least to vary the written contract entered into between the parties. The agreement or promise did not bind the parties. The defendant might, notwithstanding, have relied on the words of Iris covenant, and have said, pay me the rent reserved in the lawful currency of the country. The contract between the parties was in no wise varied or affected by it, unless they subsequently chose to act upon it and to carry it into effect, when it became an accord executed. But if the defendant made such promise, and then in pursuance of that promise sent his daughter to be educated, thus receiving her tuition in discharge of the plaintiff’s indebtedness, why should not this, so given and received, amount to payment? That the promise was before the execution of the lease, is the only circumstance relied upon to distinguish the case from the most ordinary occurrence of payment by service upon express agreement to that effect. We do not see that this circumstance varies the case in the least. It is the services rendered, and their acceptance in satisfaction, that concludes the defendant, and not the mere unexecuted agreement. It is the acceptance in satisfaction, and not the time when the agreement to accept was made, that constitutes the gist of the defence. Many observations have been made upon the weight of the evidence, and it has been urged that the jury were not warranted in the inferences which they were instructed by the judge they might make from the testimony. But this was a matter of fact for the jury to decide. If, however, the judge erred in this matter, in his instructions to the jury, specific exceptions should have been taken, so that we might be able to review those instructions in regard to any matter of law raised by the exceptions. As the ease is presented to us, we are of the opinion that the evidence admitted was competent and admissible.

It is assigned for error that the plaintiff’s books of account were permitted to go in evidence before the jury. The bill of exceptions simply states that the admission of these books in evidence was objected to, but does not state what they were *612offered to prove, nor the grounds of the objection. We are, therefore, left in the dark as to the reasons which influenced the court below in the admission of this testimony, (a) If we consider such an exception at all, and can see any ground upon which the evidence can be legalized, we will not reverse. If illegal as offered, and for the purpose for which offered, but competent and legal for any other purpose, the exceptant should specify the ground of his objection, or he will properly lose the benefit of the exception. If he do not, it will not appear but that the evidence was offered for the purpose for which it would have been competent. Before the court can reverse, the error must be manifest.

The object, as has already been said, for which the books were offered is not stated, and we must look to the case to see if any purpose for which they would have been competent. Taking it for granted that the plaintiff had shewn the promise to receive the tuition in discharge of the rent, and that the daughter had been accordingly sent to the school in fulfillment of this promise, why should he not be permitted to prove the amount of the service by the charges in his ordinary books of account ? So also the amount of books and stationery furnished to the daughter, articles necessary for the purpose for which she attended the school, and which, as incidental to tuition, seem to stand on the same footing. Are not charges for tuition, like any other services rendered, the proper subject of charge, in a party’s book of original entries ? It is not perceived that the admission of the books of account for such purpose and under such circumstances, in any way conflicts the decisions and settled doctrine in this state on the subject.

The admission of the books of the Rahway bank is also assigned for error. Neither the purpose for which offered, nor the ground of objection is stated, and the remarks in regard to the preceding assignment of error are here also applicable- If *613any purpose for which competent in this cause, and for which they may have been admitted, then under this bill of exceptions, there can be no error manifest to the court. It was said by the plaintiff below, that the §165 of the rent had been paid by a check of the plaintiff, given to the defendant, deposited and carried to the credit of the defendant on the books of the bank. In connection with and to support such opening, why may not the books of the bank and the account of the defendant be brought forward to prove the actual credit given to the defendant, and that the money had actually gone into his possession by the usual business mode, to wit, by credit given him for the amount of the check? How else could the fact be made to appear? Not by an officer of the bank alone, because the account of the defendant in the books of the bank would be the best evidence of the fact. There is much in the remark that banks may be considered the agents of depositors, to a certain extent, in the receiving and paying out of moneys. See remarks of Putnam, J. 3 Pick. 108. The competency of the books most of course depend upon the object for which offered, and the ci ream stances of the case. In Furness v. Cope, 5 Bing. 114, a banker’s ledger was held to be competent evidence to shew that a customer had no funds in the banker’s hands. If in connection with other testimony the object be to shew, that the amount of a cheek given by one person to another, had been actually received by the latter, by being carried to his credit on the books of the bank in which ho kept his account, and upon which also the check was drawn, it seems to be not only legal and competent, but also the only proof which could ordinarily be given of such a fact. The judgment of the Supreme Court must therefore be affirmed.

Note. — The Chancellor had been of counsel with one of the parties, and the Chief Justice and Whitehead, J. had expressed opinions in the Supreme Court: they, therefore, gave no opinion.

Cited in Perrine v. Send, 1 Vr. 454; D., L. & W. R. R. Co. v. Dailly, 8 Vr. 528.

.) See Camden v. Doremus, 3 How. 530, ini which case the appellate court disregarded entirely general objections taken to^ the admissibility of evidence, no reason for the objections appearing in the bill of exceptions. See also Smith v Craig, 2 Barr. 153; Hinde v. Longworth, 11 Wheat. 200; 6 Cond. Rep. 271; Wolverton v. Commonwealth, 7 Serg. & R. 276.