Edington v. Pickle

• Decision Date: 30 September 1853
• Parties: WM. EDINGTON v. WILEY PICKLE.
• Court: Tennessee Supreme Court

33 Tenn. 122

WM. EDINGTON

v.WILEY PICKLE.

Supreme Court of Tennessee.

September Term, 1853.

FROM KNOX.

This action was brought before a justice of the peace in Knox county, by William Edington against Wiley Pickle, on an account for $10 for teaching the defendant the mysteries of psychology and clairvoyance. There was judgment before the justice for the plaintiff, for the sum claimed and costs, less $1.50 admitted by him as set-off. The defendant brought the case into the circuit court of Knox county, by certiorari, where, at the June term, 1853, it was submitted to a jury whose verdict was in these words: “We find that the plaintiff does owe the defendant one dollar and fifty cents,” and a judgment rendered thereon. There was proof that the defendant attended the lectures and witnessed the experiments of the plaintiff, but no proof of any contract between them. The plaintiff claimed on a quantum meruit; and his honor, Judge Alexander, charged the jury as follows: “If the plaintiff has established, by proof, a contract, both parties must abide by it; and the plaintiff should recover although the defendant may not have derived any benefit from plaintiff's services. But if there was no proof of a contract, and the plaintiff relies upon a quantum meruit, then it should be shown that the defendant was benefited by the services of the plaintiff.

The plaintiff's motion for a new trial being made and overruled, he appealed in error to this court.

Kain, for plaintiff; Sneed and Temple for defendant.

CARUTHERS, J., delivered the opinion of the court.

This suit was commenced by warrant before a justice of the peace, for the sum of $10, which was charged for teaching the defendant the art and mysteries of psychology and clairvoyance. No contract was made, but the defendant received the instructions of the plaintiff, who claims the said amount on a quantum meruit. The defendant insisted that he did not assume to pay the plaintiff anything, and had a just adverse account against him for $1.50.

In the circuit court the verdict of the jury was in these words: “We find that the plaintiff does owe the defendant the sum of one dollar and fifty cents.” This is the entire verdict, and the court gave judgment upon it, in favor of the defendant, for the amount. A new trial was refused, and the case brought up by the plaintiff.

Now, can this judgment be sustained? We think not. By the act of 1756, ch. 4, sec. 7 (C. & N.), “where there are mutual debts subsisting between the plaintiff and defendant, one debt may be set-off against the other.” But this was only defensive until the act of 1815, ch. 53, which provided that it should be lawful, where a suit was brought before a justice of the peace, and the defendant shall plead a set-off,” and on a fair examination of their accounts it shall appear that there is a balance due in favor of the defendant, to enter up judgment against said plaintiff.” This only applies to a “ balance” due on examination of conflicting accounts. The intention is that where there are mutual demands, and the defendant's is the largest, he shall not be put to a cross-action to recover the balance that may be due to him, but in that action he shall so far be regarded as plaintiff as to obtain a judgment for the amount that may be thus found to be due him after extinguishing the demand of the other party. But here it is not found that the plaintiff has any account against the defendant, who is allowed the whole amount of his account. We do not think the justice or the court has any jurisdiction in such a case. The act of 1815 was only intended to apply to cases where adverse accounts existed, upon a comparison of which a balance was found due to defendant.

We are not aware that this question has ever before been presented to this court. It is true that it has been decided that the plaintiff could not dismiss his suit after a plea of set-off by the defendant, because such a plea was in the nature...