Skelding v. Whitney

3 Wend. 154 | N.Y. Sup. Ct. | 1829

By the Court,

Marcy, J.

As a defence to the present action, the defendant offered to* prove that the damages now claimed were taken into consideration, and allowed without objection from the plaintiff, by the sheriff’s jury, as a set off to the demand claimed in the former suit between the same parties ; but the judge refused to receive the evidence. The present application for a new trial rests mainly on the alleged error of this decision of the judge.

In the former snit, there was no issue; the plaintiff’s damages were assessed by a jury, and adjudged by them to be merely nominal. Was the claim of the plaintiff, for which this suit was brought, one that could properly be considered by the jury as a matter of set off in the former suit? If it was not, the right of the plaintiff to sustain this action still remains, even if the jury did in fact allow it as a set off. Such is the rule laid down in the case of Manny v. Harris, (2 Johns. R. 24.) There seem, however, to be some exceptions to this general rule ; they are found in the cases of King v. Fuller, (3 Caines, 152,) Wilson v. Larmouth, (3 Johns. R. 433,) Curtis v. Groat, (6 id. 168,) and McLean v. Hugarin, (13 id. 184.) In the latter case, it is said by the court, “Although the demand in this case sounds in tort, and might not, in strictness, have been admissible as a set off on the former trial, yet if it were admitted without objection, and has been once tried, that judgment is conclusive with respect to that matter.” It seems to be somewhat difficult to reconcile these cases with that of Manny v. Harris, unless we assume that the jury, in the latter case, made the set off without the assent of the defendant to the former suit; which assent seems to form the exception to the general rule. If it be admitted that the damages of the plaintiff were not a proper matter for the consideration of the sheriff’s jury, this case falls within the authority of those cases which are supposed to be exceptions to the general rule ; for the proof offered was, that the damages claimed in this suit had been submitted to the jury in the former suit between these parties, by the present plaintiff, without objection from the present defendant, and were allowed by the jury as an off set to the demand in that suit. This case, however, does not, in my opinion, involve the necessity of attempting to harmonize the decisions referred to, or to say precisely what shall constitute exceptions to the rule laid down in the case of Manny v. Harris.

I think that the damages sought to be recovered here Were pr0pariy brought before the jury in the former suit. Although the agreement was not entered into by the parties until most damage which is the subject of this suit had happened, yet, by fair interpretation, it is to be considered as relating not only to what was to be, but what had been done by the defendant, and to what damage had been, as well as what was to be sustained by the plaintiff. The import of the agreement is, that the whole matter should be submitted to and adjusted by the arbitrators. The suit instituted by the present defendant, for the violation of the agreement, necessarily brought under the consideration of the jury which assessed his damages, not only the benefits which the defendant in that suit had received, but the damages which he had suffered; for his claim was for the excess of benefit over damage. The plaintiff’s damage having been once passed on by the jury, a suit cannot be sustained, for them. The judge, therefore, in my opinion, erred in refusing to receive the evidence by which the defendant offered to establish the fact that the cause of action in this suit had been submitted to and passed on by the jury in the former suit between these parties.

Motion for a new trial granted.