Richards v. Comstock , 1 Conn. 150 ( 1814 )

Baldwin, J.

This record presents a variety of points which claim the attention of the court. The facts stated in the defendant’s plea and admitted by the demurrer do not form a sufficient basis for an implied promise to refund the money thus received. It was obviously the intention of the plaintiff, when from a misapprehension of the law, he placed the money in the hands of the defendant, that he should pay it into the town treasury. But the defendant on being informed of the mistake of the plaintiff, might have undertaken to regain and refund the money by an express promise and undertaking. To support such promise, the facts stated are sufficient. The declaration states such promise, and the plea does not deny, or answer it. On that ground the judgment of the justice ought to have been reversed, as it was, by the superior court.

But in assessing the damages consequent on that reversal, the superior court evidently erred, and mistook the law. By statute,^(a) the plaintiff in error, on reversal of an erroneous judgment, shall recover all that he hath been damnified thereby, “ that is,” (in the language of the old statute passed in 1738) " the whole that was recovered against him in said erroneous judgment, on which execution hath been done;” but no cost shall be taxed for either party. The judgment being thus set aside, and the money collected by force of it, restored, the parties remain as though no judgment had been rendered, and the plaintiff in the original action may, by force of the statute, enter his action for trial in the superior court; and his right to recover the object of his suit, with costs of that court and the court below, will depend on the issue of such trial. By this rule, the damages assessed by the superior court could not exceed 31 cents, that being the amount of costs, taxed by the justice, against the defendant. But the superior court, without entry, or trial of the action, allowed a further sum for the damages and costs, which the plaintiff might and probably ought to have recovered before the justice, amounting, in the whole, to 6 dollars 23 cents. For this cause, the judgment of the superior court ought to be reversed.

In this opinion the other Judges severally concurred.

Judgment reversed.

(a) Tit. 58.