Remington v. Noble , 19 Conn. 383 ( 1849 )

Stores, J.

It appears that, prior to the commencement of this suit, the parties made a settlement of their book accounts, in which the goods, for the price of which this action was brought, and which constituted a part of those account», were by mistake omitted to be reckoned; and hence the question arises, whether, assuming that there, is no other objection to a recovery for the price of them, in an action of book debt, such settlement does not interpose an insuperable objection to a recovery in that form of action.

We consider this question explicitly and decisively settled, in Punderson v. Shaiu, (Kirby, 150.) in which it was held, that a charge on book, which accrued antecedent to, but had been by mistake omitted in, a settlement between the parties, could not afterwards be recovered in an action of book debt; but that the remedy by the party affected, was by another kind of action, by which was intended a special action of assumpsit, pointing out such settlement and mistake. That case appears to have been decided, by the superior court, in accordance with a similar decision of that court in Waldron v. Eldridge; was affirmed by the supreme court of errors ; and has never, to our knowledge, been shaken or departed from. After having been thus sanctioned for more than sixty years, it would require the most cogent reasons to induce us to overrule it. No such reasons have been presented. Indeed, if we were at liberty to consider this question on principle only, we should find it most difficult to resist the reasoning on which that decision proceeded, growing out of the impropriety of considering the books of the parties as open and evidence of an indebtedness, after having been deliberately settled, and thus closed by the parties; and the impolicy of permitting the parties themselves, contrary to the rules of evidence which prevail at the common law, to testify in contradiction to their acts and acknowledgments of so solemn and deliberate a character. Nor do we think that, in respect to this question, there is any difference in effect between a written and a verbal settlement, notwithstanding, in the case cited, the settlement appears to have been made and subscribed, and the court, in its opinion, alludes to its being under their hand.

That circumstance, however, does not seem to us to affect the principle of the decision ; nor to have particularly influenced the court in that case.

The defendant in error claims, that Punderson v. Shaw is in effect overruled, by this court, in Hawley v. Sage, 16 Conn. R. 106. In the latter case, we held, contrary to what had been decided in Hart v. Smith, Kirby, 127, that an action of general indebitatus assumpsit would be sustained after a settlement of accounts to recover for an item of indebtedness, omitted by mistake in such settlement; and that the declaration need not be special, pointing out such mistake. We did not profess, nor was it our intention, in Hawley v. Sage, to supersede, in such cases, the action of assumpsit, which had always been required ; but only to do away with the necessity of a special count in that form of action, which had before been held necessary in Hart v. Smith, and to allow a less particular mode of declaring in what is termed the general indebitatus count. Our only intention was, while we sanctioned the necessity of the action of assumpsit, which had always been the form of the remedy in such cases, to render the pleadings therein more simple and concise than formerly. Punderson v. Shaw, so far from being overruled, is not even alluded to, by the court, in that case, for the obvious reason, that it was not intended to be affected.

This view of the case before us renders it unnecessary to decide, whether the goods for which the plaintiff claimed to recover in this suit, were sold or charged by him, under such circumstances that the price of them could be recovered in the action of book debt, if no settlement had taken place; and we are less disposed to do so, on account of the loose and and indefinite manner in which the facts in relation to this point are stated in the bill of exceptions.

therefore advise a reversal of the judgment of the county court.

In this opinion the other Judges concurred.

Judgment to he reversed.