Martin v. Fairbanks , 7 Vt. 97 ( 1835 )

The opinion of the court was delivered by

Phelps, J.

This action was brought originally before a justice of the peace, and carried by appeal to the county court, where judgment to account was rendered and the case referred to an au« ditor to examine and adjust the account. It is objected to his report, that he has allowed to the plaintiff certain charges, which, although due at the commencement of the action, had not then become payable; the term of credit having expired before the adjustment by the auditor.

If we consider this case as standing upon the same footing as an original action in the county court, there can be no doubt that the auditor did right in adjudicating upon contested claims, as the statute is peremptory that the auditor shall adjust the account up to the time of making his report. And there is no reason why he should not proceed in the same manner, as if the suit had been original in that court, unless it should be found, that the action in the justice’s court would have been governed by different rules.

The question then is, ought the justice, if the suit had remained pending in his court up to the time when the charges became payable, to have allowed the charges, or should he have turned the party round to a new suit to recover them ? In other words, is it the duty of a justice of the peace, in the action on book, to adjust the account up to the time of trial, or only to the commencement of the action ?

There is no statute provision on this point, the provision above alluded to having reference only to auditors appointed by the higher courts. The action of account at common law has this peculiar feature, that it is not .essential to the maintenance of it that the defendant should be indebted to the plaintiff. Hence the only available defence, in the first stage of the action, is such as goes to shew that there is no legal ground for requiring an account. Thus if the parties are found to be partners, or the defendant the bailiff and receiver of the plaintiff, &c., as the -case may be, judgment quod computet passes of course; and this without reference to the question who is in arrear. The adjustment by auditors is in the nature of an assessment of damages, with respect to which, as a general rule in cases of contract, the damages are assessed and adjusted up to the time of trial. Such is the case with respect to promissory notes and other evidences of debt, and it is only in cases where a future action may be sustained for other and further damages, that a different rule obtains. Hence in account at common law the account is adjusted up to the time of trial. The same rule holds in chancery, when an aceount is to be taken, whether it be as between partners, or in case of trustees, executors or others. There is the most manifest reason for this. In all cases involving an account, the only legitimate object of recovery is, the balance, and not any particular item, or items, which may constitute a por-_ tion of the account. Besides, there would be a palpable impropriety in rendering judgment upon an anterior state of the account, and leaving the plaintiff on the one hand, to commence a new action upon a subsequent section of it, or driving the defendant, on the other, to his cross action, to recover a counter balance. It is true that a judgment at common law cannot be prospective, to cover what may accrue thereafter, and it is for this reason probably that the common law action of account has fallen into disuse, and that resort is now usually had to chancery.

The rule of the common law being as stated above, it follows, that the statute is only in affirmance of that law, and that it would have been the duty of the justice, had the suit been ultimately determined in his court, to adjust the account up to the time of trial. The auditor therefore did right in allowing the claim in question.

If it be objected that injustice is done by subjecting the party to costs, when he was not indebted at the commencement of the suit, it may be answered, that this is the necessary result of the statute, as applied to the more important actions of this kind which originate in the higher courts, and is there a matter of common occurrence. It is also the result of the settled rule of the common law, as applicable to the subject of accounting, wherever the account is taken. It is also in this case the consequence of the defendant’s own default, for if he had tendered the grain, when it became payable, it would have defeated the action.

Judgment affirmed.