Cardell v. Bridge

Metcalf, J.

The jury were correctly instructed that if the plaintiff had not kept his agreement with the defendant, he could recover only “ the amount by which he had benefited the defendant.” That he was entitled to recover that amount is settled by the cases of Hayward v. Leonard, 7 Pick. 181; Bassett v. Sanborn, 9 Cush. 58, and several, intermediate decisions, [n some of those cases, a recovery was had on the common count of quantum meruit. And this plaintiff may recover on the count annexed to his writ. Such count may, by the Gen. Sts, c. 129, § 2, cl. 7, be used when one or more items are claimed, either of which would be correctly described by any one of thr sommon counts.

It is a sufficient reason for the ruling that the plaintiff could not recover on his declaration in set-off, that it was a claim for unliquidated damages. Gen. Sts. c. 130, § 3.

The objection to the admission in evidence of depositions, which had not a United States revenue stamp attached to the magistrate’s certificate thereon, was rightly overruled. If any such stamp is necessary to the validity of legal process issued by a state court, we are of opinion that when one is affixed to an original writ, another need not be affixed to a deposition filed in the case. Exceptions overruled.