Post v. Smilie

48 Vt. 185 | Vt. | 1876

The opinion of the court was delivered by

Redfield, J.

This defendant had sued the plaintiff on book, and recovered final judgment. On that trial, this plaintiff presented an account in offset against the defendant, who was plaintiff in that suit, and among such items was a charge against this defendant, “Feb’y 5th, 1872, Bissonette order, $100.” There were three of such orders, of different dates, but each of the same amount. They were all charged on the plaintiff’s book, and crediteji on the defendant’s book. After the commencement of that suit, and before the audit, this defendant charged on the debit side of his book to the plaintiff, “ To error in Bissonette order, Feb’y 5, 1872, $100.” On the trial before the auditor in that case, the plaintiff and his counsel compared the defendant’s credits with the plaintiff’s charges, as to these three orders, and found them to,agree. But in this defendant’s specifications, but two orders were credited, and the charge for error in this order was omitted. The auditor, being informed by the parties that the books of the parties agreed as to these orders, computed- the balance due this defendant upon his (defendant’s) specification, whereby this plaintiff lost all benefit of his order. As the auditor has found there was no fraudulent design on the part of this defendant, we think the case shows that this item of $100 was omitted, and not presented to the “auditor for adjudication, by casualty and mistake, and not, therefore, barred by*that adjudication.

II. Parol evidence cannot be lawfully admitted to contradict a record. But in a general verdict and judgment, however conclusive is the judgment of all matters adjudicated, it is, irt most cases in general assumpsit or book account, absolutely necessary .to resort to parol evidence to ascertain, whether certain specific items of book account or claims in assumpsit, were submitted and adjudicated in the trial of the case, or not; and when the fact is ascertained that an item or claim was submitted and considered, the claim becomes merged in and concluded by the judgment, and has, thereafter, no existence as a claim for litigation or dispute. Gray v. Pingry, 17 Vt. 419; Spooner v. Davis, 7 Pick. 146; Freeman Judg. 297-8.

III. We think the plaintiff not entitled to recover costs. The Gen. Sts. c. 125, s. 23, provides that “ if the defendant, in any action on book account, after having personal notice of the suit, shall neglect to present his account against the plaintiff, and have the same examined and adjusted in such action, such defendant shall not recover any cost in any action he shall commence -to recover the amount of the account aforesaid against such plaintiff.” The auditor finds no sinister motive in the defendant, though it would seem evident that the plaintiff was misled by the fact that defendant’s specification did not conform to his book; and as the burden is always on the party making a claim to present it in such manner that the court may understand that it is submitted for its. adjudication, it must be held, we think, that the plaintiff neglected to present this account.

The judgment of the County Court is reversed, and judgment that the plaintiff recover the sum reported by the auditor, with interest, and without cost.