Farrar v. Davis , 53 Vt. 597 ( 1880 )

The opinion of the court was delivered by

Redfield, J.

This action is assumpsit, in the general counts. Plaintiff’s specifications $46.40. The defendant pleaded the general issue ; and gave notice of a settlement of the plaintiff’s claim in January, 1875. The plea in offset was traversed. The plaintiff ’s claim was conceded by defendant’ to have been originally a just claim. The defendant gave evidence tending to show that in January, 1875, he held a note, signed by plaintiff as surety, for $29, dated April 28, 1871; and that defendant then applied said note in part settlement of plaintiff’s claim, leaving $10 due the plaintiff, which the defendant claimed he agreed to pay, and had paid, in services. From this statement, we infer that the defendant had done legal services for the plaintiff since the settlement, but that no adjustment or application of any particular items of such service had been made, in extinguishment of the admitted sum due the plaintiff. It is not stated, but the statement leaves a strong inference that the defendant’s specifications in offset were made up of the note in question, and certain items of account, for defendant’s professional services. It does not appear, nor is it claimed, that the parties ever adjusted the defendant’s charges for his services, or made any application of them upon the plaintiff’s claim. The items were proper items of charge on book at the time the services were rendered, and were proper matters for offset against plaintiff’s claim. The defendant pleaded in offset, and gave plaintiff’s attorney his specifications, on trial, and then waived his offset. What items of defendant’s account are adjudicated, and extinguished, by this judgment does not appear, nor is it easy to conceive that any were. The plaintiff’s counsel claim, with some reason, that he was so dazed and bewildered by defendant’s sudden shifts and tactics, on trial, that he could not comprehend the condition of his case. That was, measurably, his fault. But we think the exclusion of his evidence as to the note was error. If it was given to compromise a criminal prosecution it was void. If it had any force as indemnity to the State, it belonged to the State ; and the defendant had no right to apply it in payment of his private claim. And the alleged facts, if true, in connection with the continued possession of the note by defendant, are strong evidence that the transaction claimed by defendant is unfounded. If the note was legitimate as indemnity for costs paid by the State, and to the defendant himself, then it is improbable, as inconsistent with defendant’s integrity, that he should agree to apply said note in payment of his personal and private debts. If the note is void, as infected with illegality in its inception, then it is improbable that the plaintiff, who stands as surety, should have paid it, voluntarily, as claimed by the defendant.

The judgment of the County Court is reversed, and cause remanded.