Cottle v. Payne

6 F. Cas. 616, 3 Day 289

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: September 15, 1808
• Status: Published

Opinion

LIVINGSTON, Circuit Justice.

This is an ¡action of debt on bond, the condition of which is that the defendant should distil cider brandy and keep an account thereof for seven years and three months, and deliver one tenth part therepf to the plaintiff. The defendant pleads payment generally, and relies altogether upon the lapse of time since the date of the bond. In England payment is presumed in twenty years, but this rule is controlled by courts of justice where the presumption of payment is opposed by other circumstances. But in Connecticut, as the legislature1 have acted on this subject, and fixed a term after which bonds of a certain description shall not be enforced, it deserves serious consideration whether the rule is to be extended to cases not within the statute. Upon this point, however, the court deem it unnecessary to express an opinion. For in our view of the case the plaintiff had no right of action for his part of -the brandy distilled until the expiration of the term of seven years and three months, ■which was in July, 17S7; though, had the defendant distilled no brandy at all, perhaps the plaintiff might have sustained an action at the end of the first year, as such neglect would have been a breach of the condition. But if twenty years had elapsed since the cause of action accrued, we think the circumstances disclosed by the plaintiff are such as to remove any presumption of payment. (Here his honor commented minutely upon tile evidence.) Though the plaintiff, upon strict principles of law, is entitled to recover, it is difficult to estimate the damages. The demand is, indeed, a stale one. The plaintiff calls upon the defendant, after a great lapse of time, for an account of the brandy he has made; yet it cannot be expected that the defendant should have kept such an account until this time. No inference is to be made against him for not producing it now. He had good reason to believe he never should be called upon. He would have been justified even had he destroyed it. Under such circumstances, it is incumbent upon the plaintiff to prove the quantity distilled. During one year the plaintiff has furnished some data, from which an estimate may be made; in no other year is there any. The jury have no right to supply this want of proof by conjecture, or to calculate that he distilled as much in other years as in this, especially when it appears that in some of these years there was no cider.

Daggett inquired whether the rule of damages should be the value of the brandy at the time of the demand, or at the time the right of action accrued?

PER CURIAM.

The brandy was to be delivered on demand. The value at the time of the demand, therefore, is to furnish the rule. Verdict for the plaintiff for $G9.21.

Daggett moved that costs be allowed the defendant, under the twentieth section of the first judiciary act 1 Stat. Cl.

PER CURIAM. The court will not exercise their discretion to tax costs against a prevailing plaintiff, except where he has knowingly brought forward an unfounded claim, or, in other words, where he must have known that he was not entitled to five hundred dollars damages. In this case the plaintiff might naturally and fairly suppose he was entitled to recover more than five hundred dollars. Motion denied.