Olcott v. Hanson
| Decision Date | 15 July 1864 |
| Citation | 12 Mich. 452 |
| Court | Michigan Supreme Court |
| Parties | Thomas J. Olcott v. Albert S. Hanson |
Heard May 13, 1864
Error to Washtenaw Circuit, to which the cause had been appealed from a justice of the peace.
Hanson brought suit against Olcott, on a promissory note of $ 85 dated March 28th, 1859, on which several indorsements had been made. Olcott pleaded the general issue, with notice of various items of set-off.
On the trial in the Circuit Court, June 17, 1863, the defendant offered evidence of a payment of five dollars, made on the note in November, 1860. The plaintiff objected, for the reason that the bill of particulars of set-off contained no item of five dollars, for money paid in November, 1860. The court sustained the objection, and ruled that it was not competent for defendant to prove any payments not mentioned and set forth in said bill of particulars.
After the cause was submitted to the jury, they returned a sealed verdict as follows: "We find for the plaintiff the full amount claimed by him on the note." The Circuit Judge asked the foreman what amount of damages they assessed; the foreman replied that the jury did not have the note, and did not remember the amount, but that it was the amount claimed by the plaintiff. The court then instructed the jury that it was necessary that they should find some specified sum, and inquired of the counsel of the respective parties if they objected to a retirement of said jury to fix upon the amount but the counsel for the defendant objected to any addition to or amendment of the sealed verdict in matter of substance. The counsel for the plaintiff then stated that the amount claimed was $ 32.90, and thereupon the foreman stated that was the amount the jury found. The court then directed the jury to render their verdict, stating the amount at which they assessed the plaintiff's damages; to which direction the counsel for the defendant excepted. The jury then rendered a verdict in favor of said plaintiff against the defendant for the sum of thirty-two dollars and ninety cents.
An order was afterwards entered, giving defendant until the first day of August, 1863, to prepare and serve a bill of exceptions; and a bill was settled and signed prior to that day. August 4, 1863, all proceedings on the judgment were stayed, on defendant's motion, for twenty days, and on August 24th the following order was entered: "In this cause, on motion of Norris & Ninde, attorneys for the plaintiff, after hearing Messrs. Beakes & Abel, attorneys in opposition thereto for the defendant, it is ordered that the plaintiff have leave to remit five dollars (proof of which item of five dollars was ruled out on the trial), from the verdict and judgment heretofore taken and recorded in this case, so that execution will issue in this case, if at all, for the sum of twenty-seven dollars and ninety cents with costs of suit."
Writ of error, to remove the cause to this court, was sued out August 13th, served August 14th, and return thereto made August 17th.
Judgment affirmed.
H. J. Beakes, for plaintiff in error, to the point that remitting the five dollars did not cure the error of rejecting proof of the payment, cited: 2 Str. 1110; 2 Wm. Bl., 1300; 1 Bulst. 49; 4 Conn. 309; 1 Marsh. 475; 17 Johns. 111; 3 Wend. 356; 4 Denio 311; Sedg. on Dams., 578; 1 Chit. Pl., 338-9. In this case the court can not know that the ruling did not prevent defendant from proving other payments.
Norris & Ninde, contra, cited: 5 Met. 205, 212; 6 S. & M., 507; 7 How. (Miss.), 675; 4 Yerg. 565. Even in a court of error the plaintiff should have been allowed to remit: 1 Cush. 141; 5 Halst. 222.
Manning, J. did not hear the argument.
That the court erred in refusing to allow the defendant to prove the payment of five dollars upon the note in suit, because it was not included in his bill of particulars, is unquestionable. Payment can always be proved as a matter of direct defense. Except in this particular, the jury were in no way misled on the trial. But while the case was still within the control of the Circuit Court--for it had suspended all further proceedings therein until the 24th of August--and evidently during the same term, leave was granted, on the 24th of August, to the plaintiff to remit the amount of five dollars from the judgment. This cured the error, unless the indecent haste of suing out the...
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...lexicon and was used in 19th century Court opinions to indicate the amount at stake in the suit. See, e.g., Olcott v. Hanson, 12 Mich. 452, 455 (1864) (opinion of Martin, J.); Truesdail v. Ward, 24 Mich. 117, 120 (1871) (opinion of Graves, J.). That amount was always determined based upon t......
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Alvarado v. Scutt
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