Hardey v. Coe , 5 Gill 189 ( 1847 )

Dorsey, J.,

delivered the opinion of this court.

Although some discussion has taken place as to the form or sufficiency of the pleadings in this cause, we are at liberty to act upon no such question; as it does not appear from the record that any such question was raised or decided in the court below.

The judgment, mentioned in the recital and condition of the injunction bond, on which the present action was instituted, is a judgment rendered against Nathaniel Hatton, in favor of Alexander Mundell, in Prince George's county court. The defendants in their plea having pleaded general performance, the plaintiff, in his replication charges, as the breach of said bond, the dissolution of the injunction, and dismissal of the bill on which it issued, and the non-payment of the judgment of Prince George's county court, and mentioned in the condition of the said writing obligatory; (that is, the bond on which this action is instituted.) The defendants in their rejoinder say, “ that there is no such record of said judgment in the said court, as the said plaintiff, in his said replication hath alleged.” Had the pleadings been conducted in proper form, this rejoinder would have been bad on demurrer. The fact of the judgment being admitted in the recital and condition of the bond, the obligors were estopped from denying that fact in their pleadings. But the proper form of pleading to admit of such a demurrer, having been departed from, the plaintiff by his surrejoinder says, that there is such record of the judgment aforesaid in Prince George’s county court; “ and this he prays may be enquired of by the court; and the defendant doth the like,” &c., and thus was the issue joined of nul tiel record. An issue of fact upon the rejoinder of payment was also joined. There were then two, and only two issues, in the cause; the one of law to be tried by the court; and the other of fact to be tried by the jury. The court, as was its duty to have done, first disposed of the issue at law; as to the alleged judgment in Prince George’s county court, and the mode in which they did so, is thus stated in the record before us: “ upon which the record aforesaid, (that is, the record of the judgment in Prince George’s county court, mentioned in the pleadings in the cause, and to which the inquiry of the court had been prayed,) being seen and inspected by the court, it sufficiently appears to the same court, that there is such a record of recovery against the said Nathaniel Hatton, at the suit of the said plaintiff, as the said plaintiff hath above in that behalf alleged.” By this proceeding of the court, the plea of nul tiel record was definitively disposed of; and we are bound to believe, as stated in the record before us, that the court made its decision by the inspection of the record of the judgment in Prince George’s county court. The record before us then proceeds, as follows: “ whereupon, for trying the issue aforesaid above joined, between the parties aforesaid, (which issue was the fact of payment of the judgment,) it is ordered by the court,” &c. in the usual form, that a jury be empannelled and sworn, which was accordingly done, and the verdict, as to the payment, was found against the defendants.

At the trial before the jury, the plaintiff took a bill of exceptions, in which it is stated, that “ the plaintiff to support the issue joined on the plea of nul tiel record, offered in evidence to the jury, the following record of proceedings in Prince George’s county court, as a court of equity, subsequently removed to the Court of Chancery,” being a transcript of the proceedings in equity, in which the injunction bond was given, on which the present action was instituted. Why this evidence was offered by the plaintiff to the jury upon the plea of nul tiel record, it is difficult to form a conjecture, unless he believed that the issue on the plea of nul tiel record was not exclusively confined to the alleged judgment in Prince George's county court. But that upon the plea of nul tiel record, there was another issue which denied the existence of the equity proceedings stated in the replication; and which latter issue was to be tried by the jury, and not by the court. To the admissibility of those proceedings in equity, to support the issue joined on the said plea of nul tiel record, the defendants objected; but the court overruled the objection, and permitted the said decree and record to be read, and gave judgment for the plaintiff on the issue of nul tiel record. Whether the court in overruling the defendants’ objection to the record, permitted it to be read to the jury, as from the language of the exception, is not improbable, and then reiterated the decision it had theretofore made on this plea of nul tiel record, or assuming to itself the decision of this newly alleged issue, examined and inspected it, and pronounced its decision thereon, by no means conclusively appears. Nor is it material for this court to determine. By the decision of the court below, made in due form of law, and at the proper time, before the jury were sworn, the only issue joined on the plea of nul tiel record was adjudicated. And by the court’s decision on the transcript offered in evidence, the defendants sustained no injury, and consequently had no right to complain. By the pleadings of the defendants, they had admitted all the facts alleged in the plaintiff’s replication, except the judgment in Prince George's county court, and its non-payment. The allegations, as to the proceedings in equity, the defendants admitted to be true. How then could the defendants be injured by the plaintiffs offering evidence, whether competent or incompetent, to prove facts which under the pleadings in the cause, they admitted to be true, and the truth of which the court were bound to assume, whether established or not, by the proof gratuitously offered by the plaintiff? The court’s admission of the testimony, objected to by the defendants, therefore, whether right or wrong, forms no ground for the reversal of its judgment.

“ The defendants, to support the issue on their part joined on the plea of payment, proved to the jury, that on the 29th of March, 1844, the sum of five hundred dollars was paid by the defendants to the beneficial plaintiff, John B. Brooke, as the administrator of Richard Peach, on a compromise and agreement made between the said Brooke and the other parties to the said proceedings in Chancery, dated 29th March, 1844, and contained in said record, which sum was in full of the amount due to the said beneficial plaintiff, as the administrator of said Peach, of the original judgment referred to in the defendants’ injunction bond, sued on in the present action; but that the said sum was not in fact the whole amount due on the said judgment.” “ Whereupon, the defendants prayed the court to instruct the jury, that if they believe from the evidence, that the sum of five hundred dollars was paid to the said beneficial plaintiff, prior to the institution of this suit, was accepted by him in full of his interest, in the judgment against Nathaniel Hatton, referred to in the condition of the bond sued on in this action, that then they must find a verdict for the defendants, on the said issue joined on the plea of payment; but the court refused to give the said prayer;” and this refusal forms the ground of the defendants’ second exception; and for which they claim the reversal of the judgment of the court below. The defendants’ plea of payment did not allege a payment of the judgment in part, but a payment of the entire judgment. To have entitled them to a verdict, they must have proved payment of the whole judgment, and not of a part thereof. Their proof offered showed but a partial payment of the judgment; and admitted that it was not of the whole amount due thereon. The court, therefore, on the pleadings before it, could not have done otherwise than refuse' the defendants’ prayer.

If the partial payment, stated in the testimony as a compromise, had been of such a character as to bar the plaintiffs’ right to recover, it ought to have been relied on by the defendants, by way of a plea of accord and satisfaction—not as a payment of the entire judgment. But if the plea of accord and satisfaction had been interposed, it would have been of no avail to the defendants; the testimony in the cause showing the transaction to have been destitute of those requisitions, which arc indispensable to the successful interposition of such a plea. It is apparent from the testimony, that the defence asserted, was nothing more than the simple payment and acceptance of a less sum of money in satisfaction of a greater sum due; and therefore could not sustain a plea of accord and satisfaction.

The judgment of the county court should be affirmed.

judgment affirmed.