Patrick v. Hazen , 10 Vt. 183 ( 1838 )

The opinion of the court was delivered by

Redfield, J.

It is contended in this case, that the testimony offered in the court below was rightly rejected for two reasons.

1. That it tended to contradict the evidence which defendant had already given of plaintiff’s admission,

2. That there was no plea in offset.

The first ground is insufficient'for the reason, that, although defendant had proved the admission of the plaintiff in interest, and thereby made it evidence in the case to be weighed by the jury, and although he was bound to take the whole declaration, even where it operated against him, still he was not bound by the admission. He could not reject it, as he could not impeach his own witness, but he might contradict the witness or the admission. It was for the jury finally to determine whether the admission had reference to the deductions of defendant’s account or not. They were- also to determine upon the whole case, whether the sum stated in the admission of plaintiff, or a less sum, was really due.

The second ground relied upon, is equally unsatisfactory, It is not a case where a plea in offset was ever required. If the claims grew out of the same transaction, and were com nected, the law only implies a promise to pay the balance. And in the case of mutual accounts, the plaintiff cannot sue for any single item of the account, but only for the balance, 1 Swift’s Dig. 713. Mc Lean v. Mc Lean, 1 Conn. R. 397. Gunn v. Scovil, reported in note to the last case,

The case of an attorney’s lien is a very strong case. If the plaintiff bring an action for money had and received, as in the present case, and the lien extend to the whole money, it could hardly be pretended that he could recover. The defendant would, in that case, have no money in his hands, belonging to the plaintiff, and, in the present case, the plaintiff is entitled in equity and good conscience to recover only the balance of the money, after deducting the defendant’s lien for his services, that being the’amount of plaintiffs money in defendant’s hands.

The judgment of thg County Court is reversed and a new trial granted.