This is the doctrine expressly held in Farrant v. Thompson, 5 B. & A. 826, and sanctioned by this court in the case already cited of Swift v. Moseley et al. There is no color for the objection that a demand of the oxen was required in this case, as a clear conversion by both defendants was otherwise shown. ORANGE, March, 1842. Peach v. Mills. Judgment affirmed. JAMES PEACH v. ARCHIBALD MILLS. Where a payment has been made upon a promissory note, the party making If a note is sued, and the defendant claim that he has paid certain sums on THIS was an action of book account brought before a justice of the peace. At the last term of this court, judgment to account was rendered, and an auditor appointed, who, at the present term, reported that the parties appeared before him and the plaintiff presented an account against the defendant consisting of the following items : Item 1. 1836, March. To part of day, looking out mill privilege and examining land, 2. 1838. Balance by exchange of bills, 3. 1839. Cash sent you by my boy which you agreed to apply on note, and did not, $ .75 .50 13.50 2.64 1.50 $18.89 3 years interest on the above, 4. 5. by me as part of house, The defendant presented his account, consisting of the following items: ORANGE, March, 1842. 1. 3 days work on barn at 9s. per day, 2. 1 do. do. on house, $ 4.50 1.50 1 day looking out a mill privilege on your land, 3.00 The items in the above accounts were never charged by either party in the course of their business, but were charged at the time of the trial before the justice, upon slips of paper, after disputes and controversies had arisen between the parties. The auditor disallowed the first item in the plaintiff's account. In relation to the second item, the auditor found that in July, 1838, the plaintiff sent a two dollar bill, by his son, to the defendant, in payment of one dollar and fifty cents, and sent word that the defendant might pay him the balance, fifty cents, at some future time, but the defendant had never paid it. In relation to the third item in the plaintiff's account, the auditor found that the plaintiff executed a note for $12.90, dated February 16, 1838, payable in one year from date, to Jacob Mills or bearer, which note was also signed by one John Peach as surety; that, before the note became due, the payee transferred the note to the defendant, of which plaintiff had notice; that the defendant sued the plaintiff on the note, and, on the trial, before the jury, (Nov. 10, 1840,) the plaintiff, who was defendant in that suit, insisted, and introduced testimony to prove, that the money charged in items No. 2 and 3, was paid upon said note, but the jury found a verdict for the plaintiff in that suit to recover the whole amount of the note, and judgment was rendered upon the verdict and an execution issued thereon and was paid by the present plaintiff, and that the $13.50 charged by the plaintiff was in fact sent to the defendant by the plaintiff to pay said note; that at the time of receiving the money, it being bank notes, the defendant said he would inquire if the notes were good, and if they were, he would indorse the amount upon the note; that a few days afterwards the defendant saw the plaintiff and told him the money was good, and he might call and get the note; that the plaintiff called repeatedly for the note, but, the defendant being absent, did not get it. Two of the jurors in that suit were witnesses before the auditor, though objected to by the plaintiff, and the auditor found, from their testimony, that said jurors, from the testimony introduced on the trial of that suit, at the time of the trial, believed that said sum of $13.50 was not paid by the plaintiff as above stated. The auditor allowed the items numbered two and three, subject to the opinion of the court upon the facts above stated. Item No. 4 he also allowed as an incident to item No. 3. Touching item No. 5 in the plaintiff's account, and items no. 4, 5, 6, 7 and 8, in defendant's account, the auditor found that in November, 1835, the plaintiff purchased of the defendant the inside joiner work of a dwelling house, i. e. all except the roof and frame, and paid the defendant therefor; that in removing the parts of said house, the cellar stairs fell into the cellar; that they were the plaintiff's property and were left by him in the cellar; that the defendant contended that he had not sold them, and he carried them away without the knowledge of the plaintiff, and converted them to his own use; that, subsequently, when the plaintiff claimed them, the defendant told him he might take them away. If, from these facts, the court should be of the opinion that the plaintiff was entitled to recover for the stairs, then the auditor allowed the item therefor as charged by the plaintiff. The auditor found that said items No. 4, 5, 6, 7 and 8, in the defendant's account, were for parts of the house included in the sale to the plaintiff by the defendant, above mentioned, and therefore disallowed them. Touching the three first items in the defendant's account, being for five days work, the auditor found that the defendant worked only two days instead of five, and, for the two days work, he had received his pay, and had no right to charge therefor. The auditor also disallowed the ninth item in the defendant's account, for want of sufficient proof to sustain the charge. A. Underwood, for plaintiff. 1. Was the delivery of the $13.50, mentioned in the report, a payment? and if not, ORANGE, March, 1842. Peach v. Mills. 2. Is the plaintiff estopped by the verdict and judgment in Mills v. Peach from recovering the $13.50, and the 50 cents in plaintiff's account? As to the first question, the plaintiff insists it was not a payment. Payment is a technical term, and means a delivery of money in extinguishment of a pre-existing debt. It requires the assent of the parties, the meeting of the minds, as much as the creating of the debt; hence, to constitute payment, the money must be delivered and received in discharge of the debt. And when payment is pleaded, evidence short of this will not support the issue for the defendant. In the case of Strong v. Mc Connell, 10 Vt. R. 231, and Chellis v. Woods, 11 Vt. R. 466, this principle was recognized. Rowe v. Smith, 16 Mass. R. 306. In the present case, like those, something was left to be done by the parties after the delivery of the money. The defendant doubted the genuineness of it, and reserved the right to make inquiry about it. He did not receive it in payment; it was left for future adjustment. The facts that the defendant afterwards told the plaintiff to call and take his note, that he found the money good, &c., did not alter the nature of the original delivery. 2. Estoppels are not to be favored. clude truth, and are, therefore, odious. juris. A man shall be estopped by verdict respecting a thing directly put in issue, and not otherwise. If any thing be not directly and precisely alleged, it shall not be an estoppel, for an estoppel must be certain to every intent. Co. Litt. 252-6. 1 Show. 28. 2 Lord Raymond, 1036, 1050. Rol. Abr., title Estoppel, 9, 10. 1 Bull. N. P. 244. 2 Stark. 200. 1 Story's Pleadings, title Estoppel, 46. Outram v. Morewood, 3 East, 346. Heming v. Wilton, 24 E. C. L. R. 208. Godson v. Smith, 4 do. 410. 2 Levins, 381, 418. 4 Mass. R. 181. Towns v. Nims, 5 N. H. R. 251. They tend to ex- To constitute an estoppel by a former judgment, the precise point which is to create the estoppel should be put in issue and decided, and this should appear from the record. Smith v. Sherwood, 4 Conn. R. 276. 2 Stark. 200. The judgment, sentence, or decree, must be direct upon the precise point, and is not evidence of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment, as having constituted one of the grounds of that judgment. 11 St. Tr. 261. Harg. Law Tracts, 456. Pothier, by Evens, 357. 2 Stark. 202. A verdict, to be conclusive, must be for the same cause, and the cause of action is the same only when the same evidence will support it. 2 Stark. Ev. 198. In the case of Mills v. Peach the point in issue was payment, or no payment. This was the only question litigated, and that verdict is only evidence that that note was not paid. It is no evidence that Peach did not deliver money to Mills. The jury might find that no money was delivered. They may have found that it was delivered, but to pay some other debts, or that it was delivered generally. These are only incidental questions. They are collateral to the issue. They are to be only inferred, by argument, as grounds of the verdict. The issue was whether the $13.50 was delivered in payment. One of the jury may have considered that no money was delivered, as the ground of his verdict; another might doubt of the delivery, but conclude, if delivered at all, it was delivered generally; another, that the money was delivered, but to pay some other debt. Every juryman might have a different ground, but all agree that the note was not paid. Would the same evidence support that defence and this case? If so, possibly the plaintiff is estopped. But such is not the fact. The issues are entirely different, and the evidence must be different. In the former, Peach must have shown the delivery of the money in payment, and it must have been so received to make out a defence. In this he is only to show a delivery of the money generally, and the law implies a promise to pay. The auditor should have excluded the evidence offered to prove the money not delivered. This was a negative, not capable of proof. The jury could not have found it not delivered. They could only say they did not find it was delivered. But if the jury found it was not delivered in payment, it was a matter wholly immaterial whether it was actually delivered or not, and so they might have left that fact. The plaintiff insists that the defendant can only be permitted to show what issue was decided, and not the grounds of the decision. It would be a novel principle in the doc ORANGE, March, 1842. Peach v. Mills. |