Hodges v. Hosford

If an auditor, in an action on book account, decide a question of fact, and it appears, from his report, that there was any testimony before him tending to prove the fact as found by him, his decision is conclusive; but if he' reports all the evidence, on which he based his finding, and that evidence has no tendency to prove the fact, his finding may be corrected by the court. Where several of the plaintiff’s charges, in an action on book account, were for articles delivered to others on account of the defendant, and the only proof, as to any order from the defendant for such delivery, was, that the persons, to whom the goods were delivered, resided in the immediate neighborhood of the defendant, and was frequently employed to do errands for him, or that he resided in the neighborhood of the defendant and fre* quently labored for him, or that he resided in the family of the defendant,- and there were other charges in the account for articles delivered to the saipe person, the correctness of which was not denied by the defendant, and the auditor, from this proof, in each case, found the fact that the defendant authorized the delivery of the articles, it was held, that, in each of these cases, the evidence had a tendency to prove the fact, and that therefore the finding of the auditor was conclusive. A settlement of book accounts, by the parties, is as conclusive as a judgment. In such case, it is not competent, in an action on book account between the parties, to examine the accounts, prior to the settlement, upon the mere supposition that a mistake exists; but the error must be first pointed out, and may then be corrected.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported, in substance, as follows. Among the items of the plaintiff’s account was a charge of money “ paid to Miss Sheldon, $0,58,” which item the defendant disputed, but the auditor allowed the same, and reported that he presumed a request from the defendant to make the payment from the fact that Miss Sheldon “resided in the family or neighborhood of the defendant.” The defendant also objected to several of the plaintiff’s charges for payments to Abby Dexter; but the auditor reported, that “ it appeared that Abby Dexter resided with the defendant for several years, as a member of his family, and that there were other charges for payments made to her, which were not objected to,” and that “ the auditor presumed a request ” from the defendant to deliver the articles. The defendant also objected to an item of $3,00 in the plaintiff’s account, for articles which it appeared were, by order of one Rice, delivered by the plaintiff to one Tubbs and charged to the defendant, in reference to which the auditor reported, that “ it appeared that Rice resided in the immediate neighborhood of the parties, and was frequently employed by them to do errands,” and that “ the auditor presumed he was directed by the defendant to give the order ” for the articles. The defendant also objected to several charges, in the plaintiff’s account, for articles delivered to one Fisher, in reference to which the auditor reported that “ it ap. peared, that said Fisher resided in the neighborhood of the parties, and frequently labored for them and others,” and “ the auditor presumed a direction from the defendant” to pay said Fisher, as charged. The defendant also objected to an item of $7.00, for money paid to Mary Ann Nurss; but the auditor reported that it appeared, that “ Miss Nurss lived with the defendant for some time, and there was a similar charge made previous to this, to which the defendant did not object,” and “ the auditor presumed that the defendant directed Miss Nurss to procure the charge to be made against him. It appeared, that, on the 15th day of February, 1822, the parties met, for the purpose of adjusting their previous dealings, and agreed upon the balance then due ; but no settlement was made upon the books of either party, and the dealings between them were continued, as before. The defendant now claimed to have the accounts adjusted by the auditor, which accrued prior to that settlement; but the auditor decided that he could not go back of that settlement. The auditor reported that there was a balance due to the plaintiff of $977.68. The defendant filed exceptions to the report, which were overruled by the court, and the report was accepted; to which decision the defendant excepted, - — ——- for defendant. Where an auditor presumes a fact, without any evidence to sustain the presumption, the court will correct the error; Warden v. Johnson, 11 Vt. 455; Phelps et al. v. Wood, 9 Vt. 400. The facts found by the auditor, relative to the residence and occupation of the persons, to whom goods were delivered, furnished no evidence to warrant the conclusion that the defendant authorized them to take up goods on his account. The fact, that some articles were charged, as delivered to the same persons, and not disputed, furnishes no evidence, which should warrant the auditor in presuming that they were authorized to take up other goods. The auditor should not have refused to examine the accounts prior to Feb. 15, 1822, notwithstanding he finds the accounts were adjusted to that date. If there was a mistake in that settlement, it was his duty to investigate it; Darling v. Hall, 5 Vt. 91; Whiting v. Corwin, lb. 451. The plaintiff submits that the several questions, decided by the auditor, were merely questions of facts; that there was evidence, from which he might legitimately draw his conclusions; and that these are not subject to be revised by any other tribunal; Kent v. Hancock, 13 Vt. 519.