Ford v. Porter , 32 N.H. 376 ( 1855 )

Eastman, J^*

This case appears to have been a proper one to be committed to an auditor. The plaintiffs’ claim consisted of an account of seventy-five items of goods sold and delivered, and thus came clearly within the provisions of the statute for the appointment of auditors. Rev. Stat., chap. 189, § 1. The specification showed upon its face that an investigation of accounts was necessary.

The fact that at1 the hearing the defendants admitted sundry items to be due, amounting to {$33.14, and also made other admissions, tending to show that there was no controversy about the amount of the claim, does not tend to change the character of the action. These admissions were only a substitute for other evidence, and relieved the plaintiffs from proving their claim thus far. Had no admissions been made, the plaintiffs would have been obliged to furnish evidence to prove the account.

If the defendants had made the same admissions in court, before the case was committed to an auditor, as they did before him at the hearing, and placed these admissions in a form to estop their denial of them thereafter, probably the court would not have referred the matter to an auditor, because the controversy would, by the admissions, have become narrowed down to this simple question: “ to whom was the credit given ?” which, judging from the facts stated by the auditor, would not require an examination of accounts or vouchers. And the statute does not authorize the reference of a case to an auditor where no investigation of accounts or examination of vouchers is necessary. Brewster v. Edgerly, 13 N. H. 275.

But as‘the case stood before the auditor, we think he might properly enough have proceeded with the hearing and stated the accounts, finding the amount due to the plaintiffs to have been more or less, as he should find the fact to be, whether the credit was given to Eaton or to the defendants.

The plaintiffs came before him with their account, which was substantiated in part by the admissions of the defendants. To that extent the auditor could find a sum due to the plaintiffs. As to the balance of the accounts, the defendants admitted that the charges were made against them, as the books purported to show, at the several times specified, and that the goods were delivered to Eaton; but they denied a delivery to themselves or that they were liable therefor. The admissions thus made proved the amount claimed to be due, and left the matter of liability only to be settled ; and as the auditor should find that fact to be, so he would state the accounts between the parties.

Whenever a case requires the examination of accounts and vouchers .in any of its parts, it may, in the discretion of the court, be committed to an auditor ; and if matters inseparably connected with the accounts arise upon the investigation, the auditor may properly enough pass upon them.

In the case of Jones v. Parker, 6 Foster 20, the action was upon a promissory note, and the defence rested upon the ground that the note was not that of the defendant, but of the Avery Factory Company; but it appearing that the trial of the issue would require the examination of several books of accounts, receipts and other papers, the court held it a proper case for an auditor. To the same effect was Putnam v. Goodall, Grafton, July term, 1855.

In the case before us, had the defendants made no admissions amounting to evidence, the plaintiffs must have proved their account and the delivery of the goods to Eaton. They must then have gone further, and shown the liability of the defendants. The liability would thus be inseparably connected with the proof of the account, and the auditor might very properly examine into it. The admissions made before him were only a substitute for other evidence, and did not change his powers on the hearing. The case was then a proper one for reference to an auditor.

As to the other question presented; it was within the discretion of the auditor to admit or reject the plaintiff Ford as a witness. He was called to prove a special contract, whereby the defendants should be charged for the goods. Had the case been on trial before a jury, his testimony to that point would not have been admissible, and if the auditor saw fit not to admit him, his report on that account would not be disturbed. Warren v. Locke, 11 N. H. 248; Smith & a. v. Smith & a., 7 Foster 244; Lovering v. Lovering, 13 N. H. 513.

What the Common Pleas may do with the case is not for us to say. We suppose they may recommit the report; or, if the defendants shall make the admissions that were made before the auditor, they may discharge the rule, and order the case for trial by the jury.

* Perley, C. J., and Fowleb, J., having been of counsel, did not sit.'