Walsh v. Pierce , 11 Vt. 32 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

The account’of the plaintiffs was submitted to auditors, who-made a special report, submitting the case for the opinion of the court. The county court rendered judgment on the report, for the plaintiffs to recover ; to which exceptions were taken.

The’ auditors have found certain facts, and stated that they believe the facts stated in the deposition of one Wood-ruff, and made part of the case.

It is the duty of the auditors to find all the facts, and it is rarely, if ever, proper for them to submit the evidence on whieh they are found, unless it becomes necessary to present some question of law which cannot be otherwise presented than by referring to the evidence.

The depositions, used before them, should not be made a part of the case and encumber the records, unless it becomes necessary, for the purposes above mentioned. They never can ask the court, to whom the report is returned, to draw any inference of fact, because it is their own duty to do this.

In the case before us, th j auditors have not found directly that any goods were ever sold by the plaintiffs to the defendant. They have detailed the evidence, which tends strongly to prove such sale, and possibly it may be said that the evidencer-i’s irresistible. They have proved that the goods mentioned- in the account were purchased of the plaintiff by one Hiram Pierce, who pretended to be the agent of the defendant ; that they were charged to the defendant, and forwarded to Ogdensburgh, where Hiram Pierce was doing business under the name and sign of the defendant, and directed to the defendant at Qgdensburgh. From this evidence alone the defendant would not be made accountable. The auditors here present the deposition of Woodruff, and from what is there stated, they would have been warranted in coming to the conclusion, that Hiram was, in fact, the agent of the defendant, and that the goods were furnished to him. It may be remarked, however, that the deposition might be as consistent with the case supposed by the defendant in the argument, as with the one claimed by the plaintiffs. But, whatever inference was to be drawn from the deposition, it was an inference of fact which the auditors should have drawn, and not left it to the court. For these reasons alone, in my view, the report should have been recommitted or set aside.

But if we adopt the deposition of Woodruff as apart of the case, and suppose that the defendant said, in the language of the deposition, “ that he would pay the amount “ shortly, and within a few months, or in words in sub- “ stance to that effect,” (language, by the way, not very definite for a report or a special verdict,) it will still be impossible to find the amount due to the plaintiff, which is stated by the auditors. The acknowledgment of the defendant, as stated in the deposition, was made on the 23d of April, 1834, and, of course, could only apply to the account as it existed at that time. The facts in the deposition, if they are to be considered as part of the report, are, that the account was upward of $4000 — how much we do not know. The auditors say the account by them returned, marked A, is a copy of the one presented by Woodruff. It may be, that a part of the account was thus presented, but it is obvious the whole of the account, marked A, could not then have been presented, as a very considerable part, both on the debit and credit side, is subsequent to the time when the account was thus presented. On the debit side there is a charge of cash paid note, under date of June 26, of $ 1000, and under date of August 30, of $1500. Nothing is presented in the report to sustain these charges. The parties may understand this, and the court may conjecture that the circumstances are as stated in the argument; but we have nothing to look to but the report of the auditors, and that will not warrant us in saying that the charges have any relation to the notes.

It is unnecessary for us to say how the account should be stated, or what disposition should be made of the notes, if they remain unpaid. It is sufficient to say, that the facts, found by the auditors, including those stated in the deposition of Woodruff, are not sufficient to warrant a judgment for the plaintiffs,

The judgment of the county court must, therefore, be reversed, and the report set aside, and the case again referred to the auditors.