Monk v. Beal ( 1861 )

Chapman, J.

This action has arisen out of a species ot business which has been carried on very extensively in this country. Publishers of maps and of certain books which are supposed to be adapted to this species of trade, procure their sale by causing them to be sold from house to house by peddlers. The business of selling them employs a great number of persons, who are commonly called agents ; and, in order that they may not interfere with each other, a certain district, consisting of one or more states, counties or towns, is assigned to each. Sometimes the article is sold for account of the publisher, and the peddler receives wages or commissions. Sometimes it is sold to the peddler, in which case he usually procures a guarantor; and sometimes he procures some responsible friend to be the purchaser, either alone or jointly with him. In this case, the auditor reports that Henry Beal did not receive the maps charged in the bill of particulars as the agent of the plaintiff, but as sold according to the terms of’ the written contract declared upon. This writing was addressed to the plaintiff, and signed by both the defendants. This makes both of them original parties to the contract, and their promise to pay is joint as well as several. And the fact that the articles were to be forwarded to the address or order of Henry Beal does not change the character of the promise, so that one of them is to be regarded as principal and the other as a mere guarantor. The direction to make the original charge to both is inconsistent with such a distinction. The ruling on this point was correct.

The instruction was also correct as to the question whether the maps delivered to Henry Beal were such as the contract described. It appears by the auditor’s report that there was a varia! v of maps, distinguished by different titles. But they were all engraved from the same plates, and they differed only in the coloring, and the addition of railroad and telegraph lines upon some of them. The evidence tended to show that they were mere varieties of the “ New American Map,” a name which applied to all of them; and the jury were authorized to find, as they must have done in order to find for the plaintiff, under the instructions given to them, that the maps furnished to Henry Beal were in fact such as were described in the contract. And upon such a state of facts the court rightly refused to rule that the plaintiff could not recover.

The rulings as to recommitting the report and as to the continuance of the cause were within the discretion of the presiding judge, and therefore are not subject to exception. Kendall v. Weaver, 1 Allen, 277.

The testimony of the auditor, which was offered for the purpose of supplying certain alleged omissions in his report, was properly rejected. His report is the only competent evidence of what was proved before him. The statute makes it evidence, and establishes the degree of its weight. It may be competent for various purposes to prove whether a certain witness was called, and what he testified before the auditor, or whether particular facts occurred at the hearing; but to examine an auditor as a witness for the purpose of impeaching his report, by proving that his conclusions were erroneous upon the evidence before him, is inadmissible. See Sparhawk v. Twichell, 1 Allen, 450. This seems to have been the object of the question proposed and ruled out.

Exceptions overruled.