Tucker v. Cochran , 47 N.H. 54 ( 1866 )

Sargent, J.

In this case the jury undertook to award costs. In this they went beyond their jurisdiction, but that does not affect the residue of the verdict. The part relating to costs is merely void and may be rejected as surplusage. Lincoln v. Hapgood, 11 Mass. 358.

The plaintiffs’suit was upon an account annexed for §18.25. The only plea was the general issue without any off-set. The plaintiffs proved their case, and the defendant in reply claimed that he had paid for a barrel of flour charged by plaintiffs, but he did not prove it. And he did not claim that he had paid for anything else. And it is evident that he was only trying to "extinguish” the plaintiffs’ claim by a counter claim, which at most could only have been allowed in off-set if properly pleaded, but was no evidence of a payment.

Taking all the facts found by the jury and this claim could not have been allowed even in off-set, for upon all those facts there was no mutuality between the demands; and taking all the facts stated in the ruling of the court, it could not have been a payment, nor would all those facts, if found, have made the defendant’s claim competent as an off-set as a matter of law. Because Tucker might have made the contract with defendant and agreed to pay him from plaintiffs’ store, and yet the contract may have been his personal contract, and the company had nothing to do with it. Any man may make a contract and agree to pay at a store specified, not his own, but that does not prove conclusively, and ordinarily would not prove at all, that the owner of the store had anything to do with the contract.

In this case as the contractor was a part owner in the store, it might have been competent evidence for the jury upon the question as to whether Tucker was in fact acting for himself individually, or for the firm of which he was a member, in making the contract with defendant. That would have been the first question for the jury in case defendant had filed this claim in off-set, and if the jury had found that Tucker acted for the firm in making that contract, then it would become a proper matter of set-off, but not otherwise.

It being evident that the jury could not properly have found a verdict for defendant in this case, either from the facts found by them in the verdict, nor upon the ruling of the court, nor upon any facts stated in the case, we think that part of the verdict, which finds the special contract between Tucker and defendant, should be laid out of the case, and treated as surplusage like the portion relating to costs.

We then have left only the first part which finds that the account of the plaintiffs against the defendant is justly due. And although that is not in form, and does not find the technical issue raised by the pleadings as it should do, yet it is not only such a verdict as the court can understand, but it is such an one as cannot be misunderstood, and there is no trouble in concluding a verdict out of this finding to the point in issue ; and in such a case it is the duty of the court to mould and work it into form, according to the justice of the case. See authorities cited in defendant’s brief on first point; also Cheswell v. Chapman, 42 N. H. 47, and cases cited on p. 55.

Let judgment, therefore, be entered for the plaintiff upon this finding as though the verdict had been that "defendant did promise in manner and form as the plaintiff hath thereof declared against him,” for the sum of $18.25, and interest thereon, from the date of the plaintiff’s writ, as damages, and for his costs.

Judgment for plaintiff.