George A. Fernald & Co. v. Manley

133 A. 247, 99 Vt. 421, 1926 Vt. LEXIS 152

• Court: Supreme Court of Vermont
• Decided: May 13, 1926
• Status: Published

Opinion

Watson, C. J.

It is enough to say in support of the holding below, that the alleged payment of the note declared upon in plaintiff’s complaint did not include the plaintiff’s costs already accrued in the original action. For this reason the alleged payment was not sufficient in law to defeat or discharge the suit declaring on the note. Nothing short of the payment of the debt and costs could extinguish the claim on which the suit is predicated. The plaintiff would still be entitled to judgment for nominal damages and costs. Stevens v. Briggs, 14 Vt. 44, 39 A. D. 209. It follows that the jurisdiction of the court continues as to the action, including the complaint in set-off.

Whether the jurisdiction would have been affected if the payment, made after the complaint in set-off was filed, had been such as to cover both the note and the costs mentioned, is a question not within the record.

Although the ground of this affirmance was not presented in the argument of the case, we follow the established rule that the judgment below will be affirmed when it can be done on legal grounds, whether presented in argument or not. Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 111 Atl. 346; Temple Brothers v. Munnett, 97 Vt. 395, 123 Atl. 431.

Judgment affirmed and cause remanded.

Butler, J., concurs in the result.