Austin v. Berry , 3 Vt. 58 ( 1830 )

After argument, the opinion of the court was delivered by

Williams, J.

The auditor, to whom the book accounts of the parties were referred made a report in favor of the plaintiff, to which exceptions were taken, and the county court accepted the report and rendered judgement thereon for the plaintiff. On the facts found and stated by the auditor, he decided that the accounts between the parties were not settled ; that an action ots book could be maintained to recover the articles charged by the plaintiff, and further, that if the accounts were settled, that fact should have been pleaded in bar to the action.

The last decision was altogethersuperfiuous; forifthe accounts were not settled, and the auditor, it seems, was of that opinion, after hearing the evidence, it was unnecessary to decide what course the party should have taken if the accounts were settled. The decision of the auditor on this point, however, was erroneous, and if the account of the plaintiff had been settled, and he had received his pay, the auditor should have reported for the defendants.

The decision .of the auditor, that this account was not settled-, appears to have been correct from the facts set forth. The account of the plaintiff never was adjusted or settled. So much of his account as was credited by the defendants on their books was adjusted, and was passed to his credit. There was a claim at the time set up by the plaintiff for some logs which were not credited, and it was agreed,that if it could be shown there were any logs not then accounted for, the value of them should apply on the note then executed by the plaintiff to Berry. The articles charged, for which this action is brought, were omitted in the settlement, which the parties made of their other dealings, and remained to be accounted for by the defendants.

The proper remedy for the recovery of the price of those articles thus omitted in the settlement, is by action on book. The plaintiff’s claim for all the articles deliverer] the defendants was originally on book, and it is difficult to find any satisfactory reason why the nature of his remedy should be changed in relation to this part of his book account, because he has received pay or satisfaction for the residue.

Brown, for the plaintiff. N. L. Whittemore, for the defendants.

If the defendants had endorsed, or offered to endorse, the amount of this acount on the note given by the plaintiff to Mr.Berry, it would have presented a different question, but no such fact is' found by the auditor.

The judgement of the county court is affirmed.