McMillian v. Wallace

3 Stew. 185

Opinion

By LIPSCOMB, Chief Justice.

We shall say nothing about the regularity of going to trial on the former''— pleas, after the plea/mi.? darrein continuance had been withdrawn, because that seems to have been done by consent. The first objection is to the refusal to permit the evidence of payment of one hundred and fifty dollars. The point growing out of the assignment, is one on which the practice has been quité unsettled. There is no question but the general rule is, that no matter subsequent to the commencement of the suit can be given in evidence under the general issue, because a defence offered under this plea must have been good, and subsisting at the commencement of the suit; to which period the plaintiff’s right to sue will be referred. But notwithstanding this rule of pleading, it has frequently been held that evidence of subsequent payment may be admitted byway of reducing the plaintiff’s damages; and it does seem that there can be no sound objection to allowing proof of such subsequent payment for that purpose. If the whole debt was paid into Court after the commencement of the suit, even were it held that judgment must be entered up without regard to such payment, to avoid what might seem a violation of a rule of practice, the Court would not hesitate in directing satisfaction to be entered for the amount so paid. Such payment could not prevent the plaintiff from recovering his costs; there can be no reason then for refusing to let in evidence of part payment. The only plausible objection is, that the plaintiff possibly might be taken by surprise, and not prepared to rebut the evidence of the payment offered by the defendant. But this objection would apply with as much force to the evidence of a payment made before the commencement of the suit, which has never been denied or controverted, when offered under the general issue for the purpose of reducing the damages. Indeed almost any evidence may be given under this plea, and if the plaintiff is taken by surprise, he has no other remedy than to apply to the Court for a new trial. The risk of surprise would not be greater if payment after commencement of the suit should be permitted. We are therefore of opinion, that payment may be given evidence for the purpose of reducing damages, under the plea of the general issue, although such payment may have been made after the commencement of the suit. For this error the judgment would be reversed, but that the record shews that the credit was given agreeably to arrangement between the parties, when the plea puis dar-continuance was withdrawn.

The next ground relied on by the plaintiff in error to reverse the judgment, is the refusal of the Judge to give the prayed for. It is an acknowledged general rule of pleading, that if there is a special contract, it must be declared on. This rule we believe may be fairly subjected to the following restriction: If services have been performed in the fulfilment of a special contract, and the object of the suit is to recover payment for such services, if the plaintiff should fail in proving his special contract as declared on, he may still recover under a common count, provided the recovery shall not exceed the amount or price stipulated in the special contract. But if the action is for uncertain and unliquidated damages, for not doing the thing promised, then it would seem that the plaintiff must stand or fall by the special contract as set out in his declaration. The case under consideration was for rent, and although the contract proven might be different in its terms from the one described in the special count, it is very clear the plaintiff could recover a reasonable compensation for the uáe and occupancy of his land on the second count. This case we consider as expressly provided for by the statute.

Footnotes

•

a This statute provides, that if the action is for use and occupation, when the demise is not by deed, or by deed not specifying the rent to be paid, the plaintiff shall recover a reasonable satisfaction for the tenements occupied by the defendant, and if on the trial a parol demise reserving certain rent, or a deed but no rent therein agreed on, shall be proven, the plaintiff shall not be non-suited, but shall recover a reasonable satisfaction for the tenements occupied. By reasonable satisfaction we cannot believe the Legislature intended that the compensation in any case of a parol demise, stipulating the rent to be paid, should exceed the amount so stipulated. A different construction would be putting it in the power of the plaintiff to violate his contract at pleasure. If dissatisfied with the rent agreed on by the parol demise, he would have nothing to do but to avoid it, by bringing his action for the use and occupation of the land. We escape this result by confining thé reasonable satisfaction within the limits stipulated. The general principles here laid down, were not controverted by the counsel for the plaintiff in error. But he contended that the plaintiff had his election to sue on the special contractor for use and occupation, and that as he bad declared on the special contract, he should be confined to it. A sufficient answer to this objection is, that count in a declaration is a distinct cause of action, and when the first or special count was not sustained by the proof, its defects could not affect the count for use and cupation any more than if it had not been there; each count stood alone on its own intrinsic merit. The judgment must thereto re be affirmed.

By JUDGE COLLIER.

In the main, I assent to the legal positions advanced in the opinion pronounced by the Chief Justice, yet dissent from the judgment of the Court, because, to a very material extent, these positions can only be applied, as I believe, upon an assumption of fact, un-authorised by the record.

After noticing so much of the bill of exceptions as relates to the proposal by the plaintiff in error to give in evidence, the payment of the one hundred and fifty dollars, and shewing the rejection of such evidence by the Court to be erroneous, the opinion proceeds thus: “For this error the judgment would be reversed, but that the record shews that the credit was given agreeably to the arrange" ment between the parties, when the plea p uis darrein continuance was withdrawn. ” The part of the record referred to as evidencing an arrangement between the parties, is in these words: “To which said plea, (meaning the plea puis darrein continuance,) the plaintiff in this cause replied, or was about to reply, and claim judgment for the residue of his damages in his declaration. The counsel for the defendant then agreed that said plea puis darrein continuance should be withdrawn, and plaintiff’s counsel said that a credit should be entered on the judgment for the one hundred and fifty dollars, recovered and paid under the garnishment as aforesaid.”

A rational interpretation of language, it is apprehended, will not warrant the conclusion that there was any arrangement between the parties, which legalized the rejection of the evidence of payment offered by the defendant. But the only just construction of what has been termed an arrangement, is that the defendant withdrew his plea puis darrein continuance, in order to prevent the plaintiff from taking the judgment for so much of the damages claimed by the declaration as were not answered by that plea, to which it was supposed he was entitled, as by that plea all former pleas were waived. With regard to the remark of the plaintiff’s counsel, that one hundred and fifty dollars should be credited on the judgment to be recovered, it seems not to have been assented to by the defendant, and must therefore be considered unavailing for purpose.

Apart from the conclusion deducible from a fair interpretation of the language employed, it is not perhaps unworthy oí remark, that the defendant’s assent to receive the one hundred and fifty dollars as a credit upon the judgment, should not be over hastily presumed, as he would thereby lose the interest upon that sum for twelve months, to which the evidence shews him entitled.

Judgment affirmed.

Judge White, presided below, and did not sit.

Laws of Ala 701.