Paige v. Morgan , 28 Vt. 565 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. The testimony offered to show that the charges made in the case were according to the defendant’s ordinary rates of charge to other persons in the vicinity, might be proper enough, in connection with other proof, that his rates of charge were well understood, and did, in fact, come to the knowledge of the defendant; and, possibly, as showing part of the general and customary charge in the county, for similar, services, but of less account in this latter view. And, as we do not know what other testimony was in the case, the auditor expressly stating that this testimony was offered among other things not objected to, or in what view it was received, we could not hold it inadmissible, if it could be made to bear upon the question before the auditor, in any view, or in connection with any other evidence; Vilas v. Downer, 21 Vt. 419.

II. In regard to the question of jurisdiction, it will appear, by the decisions upon the subject, that the court has generally adopted a construction of the casé favorable to sustaining the jurisdiction, where it is apparent that the jurisdiction was invoked in good faith. But, of course, this is not always decisive of the case. Often the party mistakes the law, in an obvious particular, which no reasonable construction cures. But, in the present case, we can entertain no doubt the suit was brought before the justice in the most perfect good faith, and that it probably might have been brought, by the defendant’s counsel, in the most perfect good faith, in the county court. And, if it had been brought so, and the supporter continued upon the account, and the interest too, I should have been prepared to sustain the original jurisdiction of the county court. But it seems to us that the supporter was more properly treated, at the time the suit was brought, as forming no part of the account. It was delivered upon trial, and, if it proved unsatisfactory, was to be returned and taken back and no charge made for the same. It was so returned before the suit was brought. There clearly was no account to render in regard to this item, and the keeping it upon the account was a mere fiction, and, it seems to us, it would be regarded as a very singular construction to declare it a necessary part of the account, and dismiss the action on that ground.

So, too, in regard to interest upon an account, it is optional with the party whether to claim it or not, and a suit will not he dismissed because the party is fairly entitled to recover it, and by adding it the sum exceeds the jurisdiction. This item is not upon the book, and, if the party had entered it, upon his exhibit, on the mistaken ground that it did not swell the account above $100, and it finally, for any reason, were proved to do so, we think he might be allowed to correct his mistake, by striking it out) and that this is only going to the extent of the principle of the case of Scott v. Sampson, 9 Vt. 339; see also Catlin v. Aiken, 5 Vt. 177; Stone v. Winslow, 7 Vt. 338.

Judgment affirmed.