Dole v. Hayden , 1 Me. 152 ( 1820 )

Weston J.

after reciting the facts in the cause as before stated, delivered the opinion of the Court as follows :

There being mutual demands between these parties at the time of the settlement stated in the report, the whole account of the defendant in error may be understood to have been discharged, except twenty dollars, which, by mistake was not allowed to him ; for in whatever manner the mistake originated, his account remained virtually unsatisfied to the amount of the excess allowed to the plaintiff in error. This balance the original plaintiff might well recover in an action upon his account, it being an amount omitted to be allowed in the settlement.

As to the note of hand held by the plaintiff in error which remained unpaid at the time of the commencement of the action against him, and at the time of the award, although it gave him a right of action against the defendant in error, yet it could not avail him by way of set off. This could have been effected only by instituting a suit upon the note, in which case, if the two suits had gone pari passu to judgment, the one might, by a rule of Court, have been set off against the other.

Had the plaintiff in error, prior to the commencement of the original action against him, upon discovering the mistake, endorsed upon his note the amount which should have been ,allowed to the defendant in error, and given the latter notice that the mistake was thus corrected, his demand would have been fully satisfied, according to the original intention of the parties, and he could not afterwards successfully have maintained an action upon it. The plaintiff in error, however, did not take this course, but continued to resist the claim of the defendant, which we are of opinion was rightfully allowed to him by the referees in their award.

That part of the rule which provides that the report is to be made as soon as may be in any county, is a stipulation for the benefit of the prevailing party, that he may the sooner obtain judgment and execution. If the defendant in error therefore did not procure this to be done at the earliest possible period-he waived an advantage secured to himself, bj which the plaintiff in error was not injured, and of which he has no right to complain. The Court at which it was returned accepted the report, and rendered judgment for the defendant in error, upon a full view of the merits of his case, specially exhibited to them by the award of the referees.

We are all satisfied that neither of the errors assigned can prevail to reverse the judgment.

Judgment affirmed.

See Taylor v. Higgins, 3 East 171. Johnson v. Collins, 1 East 102. Israel v. Douglas, 1 H. Bl. 239. Barclay v. Gooch, 2 Esp. Rep. 571. Cumming v. Hackley, 8 Johns. 202.