Wright v. Smith

19 Vt. 110 | Vt. | 1847

Bennett, J.

We think there is no objection to the validity of the award, on the ground of uncertainty. “ That is certian, which can be rendered certain.” The award enjoins upon the defendant the payment of the taxable costs in the suit referred to. The law prescribes what items constitute what are called taxable costs in any given cause; and the facts being given, the sum total of the taxable costs is readily ascertained.

To have entitled the plaintiff to recover, he should have averred in his declaration, that the taxable costs amounted to a sum certain, qf which the defendant had notice before suit brought.

The_rule in pleading seems to be, that, when matter is more peculiarly within the knowledge of one of the parties, than the other, notice is necessary, though the terms of the contract do not require it. The question, then, is, was the amount of the taxable costs in the suit referred to in the award more peculiarly within the knowledge of the plaintiff, than the defendant. We think this is settled by authority. In Harris v. Ferrand, Hardr. 42, the doctrine is advanced, that, upon a promise to pay all costs in a suit referred to, there must be, before the action is brought, notice of the amount; and Comyns cites this case with approbation; — Com. Dig., Pleader C 73. In Barnes v. Parker, 8 Metc. 134, the promise was to pay the costs taxed &c.; and notice was required in that case. In Safford v. Stevens, 2 Wend. 158, the promise was, to pay the taxable costs; and the court held there must be notice of the amount. The éxpenditures for witness fees, costs of subpoenas and service, &c., to which a party may be subjected in prosecuting or defending a suit, and which would constitute proper items of taxation, are peculiarly within the party’s own knowledge.

The award is to pay the taxable costs. We do not think, that this necessarily requires, that the costs should have been in fact taxed by the proper officer. If the award had been to pay the taxed costs, it might have been so. Taxable costs means such as the party was entitled to have taxed by law; and the amount may well be ascertained without an actual taxation either by the court, or clerk, and notice may be given of the amount. The averment in the declaration, that the taxable costs amounted to a large sum of money, to wit, the sum of sixty dollars, we think is sufficient in that respect;but there is no allegation, that the defendant had notice of the amount before suit brought. The allegation, that the plaintiff demanded of the defendant sixty dollars, is not an allegation of notice, that the taxable costs amounted to that sum.

The result to which we have come is, that the declaration is insufficient in this particular.

The clerk will enter the judgment of the county court reversed, and judgment that the plea in bar to the second count in the declaration is sufficient, and that the defendant recover his costs.