Meserve v. Andrews , 104 Mass. 360 ( 1870 )

Wells, J.

The agreed statement does not make it appear whether or not the business of Andrews was such that the right of the plaintiffs to share the net profits involved an interest in the property burned, as a part of the subject matter out of which those profits were to be derived. The agreement to share profits may, but does not necessarily, imply a joint interest in the property held or used for the purposes of the business from which such profits are to arise. Howe v. Howe, 99 Mass. 71. The agreed facts also fail to show whether the prosecution which he defended arose from, or had such reference to the joint interest and conduct of the parties, as to give rise to the implication that the defence was properly made and the costs incurred for the joint benefit, or with the authority or assent of the plaintiffs.

An auditor’s report is prima facie evidence upon any issue of fact to be tried in .the case, and, if not controlled, will warrant a verdict and judgment in accordance with its conclusions. The court may, upon the facts stated in the report, derive a conclusion different from 'that adopted by the auditor, if the legal construction and effect of those facts require it. But the facts stated in the report must, for that purpose, be such as to control the conclusion. If they do not, the presumption is that the conclusions are based upon evidence before the auditor which is not reported ; and the report stands as establishing prima facie the results it states, unless overcome by evidence aliunde. We cannot suppose that it was intended by this agreement to give to the conclusions of the auditor any such effect upon the issue of .aw to be presented here. The very purpose of the submission of the case upon the report as an agreed statement was, as we understand it, to test the correctness of the conclusions of that report by the special facts which it states. In this hearing, therefore, the report of the auditor must be regarded as having no force except as a mere statement of facts; and the facts stated are not sufficient to enable the court to determine whether the conclusions of the auditor upon the questions presented here were right, as matters of law, or not. Consequently the

Agreed facts must be discharged.