Nichols v. Packard , 16 Vt. 91 ( 1844 )

The opinion of the court was delivered by

Bennett, J.

The first question in order relates to the jurisdiction of the county court. It is insisted that that court had not original jurisdiction of the cause. The plaintiff has charged in his account several small items, amounting in the whole to $5.27 ; also for painting the defendant’s store $60.90; and $28.39 for money paid G. S. Hale, amounting in the whole, exclusive of interest, to $94.64.

The auditor does not disallow the plaintiff’s account, for the six first items, upon the ground that the. items had never been delivered, and that the same were charged in bad faith, without color of right, —but because the same were delivered in payment for store rent. Though the plaintiff has presented in his account all the items for painting the store, yet the auditor finds that the materials found, and labor expended, were reasonably worth but forty dollars, and that this charge was in payment of the store rent. The charge for money paid Hale was allowed the plaintiff. The plaintiff had also claimed, and charged on his account, $17.56 'for interest, making his account in the whole $112.20.

The interest, which is incident to a debt, whether it be a note or an account, and recoverable when the suit is commenced, has the game effect in giving jurisdiction as so much principal.

The fact that the auditor reduced the sum, allowed on the plaintiff’s account, under one hundred dollars, or disallowed a portion of it upon the ground that the articles delivered, or services rendered, were to be paid for in a particular manner, cannot, it is clear, be decisive against the jurisdiction of the county court.

The amount, which a party may be reasonably entitled to recover, may be, and often is, a point highly litigated. So, whether an account was to have been paid in a particular manner; and it may after all, in the minds of the triers, be left doubtful.' In this case there are no facts reported to show that the charges were made, or the suit commenced, with improper motives. Besides, the act regulating the jurisdiction of justices provides that a justice of the peace shall have jurisdiction only “where the debit side of the plaintiff’s book shall not exceed one hundred dollars.” This is a clear and definite rule; and in Stone v. Winslow, 7 Vt. 343, it was said to be the invariable one, whether the book be right or wrong. The converse of the proposition must follow, and the county' court alone have jurisdiction, in a case where the debit side exceeds one hundred dollars. Certainly in cases where the charges are not fictitious, or made in bad faith, there is no reason why the rule should be departed from.

As it respects the proceedings of the auditor, the defendant only complains that he did not allow him rent for the store after it was burned. It is sufficient for this case to say, that, if the plaintiff is liable for such rent in any possible event, it must be by a special action; and it cannot be adjusted in this book action, either to extinguish the plaintiff’s account, or to enable the defendant to recover a balance. The right, if any, must arise entirely out of the contract, and not from any beneficial occupancy by the plaintiff.

The judgment of the county court is affirmed.