Peru Steel & Iron Co. v. Whipple File & Steel Manufacturing Co. , 109 Mass. 464 ( 1872 )

Wells, J.

An auditor’s report is primáfaoie evidence, which, if not controlled, requires that judgment be rendered in accordance with its conclusions. If subordinate facts and findings are reported, a jury may draw inferences therefrom different from those drawn by the auditor, and render a verdict different from the result arrived at by the auditor. Ropes v. Lane, 9 Allen, 502. Morrill v. Keyes, 14 Allen, 222. But if the parties submit the case to the full court upon the auditor’s report alone, all inferences of fact which could reasonably be drawn from the evidence in favor of the general conclusion of the auditor, will b& presumed to have been so drawn by him ; and if they are sufficient to sustain his final conclusion the judgment will be rendered accordingly. The court will not reverse his findings unless the facts, reported by him, require it, as a matter of law.

In this case the auditor finds that the plaintiff is bound by the settlement of its demand, made by Micah Dyer, Jr.; and is not entitled to recover. But he also finds and reports that Dyer had no authority, in fact, to make the settlement, without requiring a certain guaranty, from one Pierce, in regard to the shares of stock received as payment in part. The final conclusion therefore must have been reached through the position, either that Dyer was held out to the defendant as having full authority, or that the plaintiff had not done all that was necessary for the purpose of rescinding or avoiding the contract of settlement. We think it is well supported upon either ground.

Dyer was employed as the plaintiff’s attorney at law to prosecute a suit to enforce the claim. He participated with Foster, who had full authority, in arranging the details of settlement. He was intrusted with the business of carrying the arrangement into effect, and with the vouchers of the plaintiff’s demand. The settlement which he made was in conformity with the terms authorized by the plaintiff, with the exception of the guaranty; and Foster had previously mentioned these terms to the defendant’s agents, as terms of settlement, without mentioning the condition of a guaranty. This omission on his part, and his failure to suggest to the defendant’s agents that Dyer was in any way restricted, beyond the terms which he himself had named, gave those agents every reason to believe that Dyer was authorized to make the settlement which he did make. The master so finds; and also that they did in fact so believe.

Against such a settlement the plaintiff cannot set up a restriction upon the authority of the agent who was employed to make it; or a condition intended to be attached to the proposition of settlement; neither of which were disclosed to the other party.

Upon the other ground, it appears that payment of costs and counsel fees to the plaintiff’s attorney, was expressly made one of the terms of settlement. Those expenses were properly payable to Dyer as a part of the execution of the agreement of settlement ; and such payment relieved the plaintiff from further liability to him for those charges. Repayment of that sum was as necessary, in order to rescind or avoid the settlement, as repayment of the amount received by the plaintiff upon the debt. The overcharge by Dyer does not affect the question; at least, so long as the plaintiff did not offer to make restoration of any part of the money retained by Dyer.

There being nothing in the report to impeach the general conclusion of the auditor, that the plaintiff is not entitled to maintain the action, our order must be

Judgment for the defendant.