Smith v. Minnick

Foster, J. By E. S., c. 82, § 69, the court, in proper cases "may appoint one or more auditors to hear the parties and their testimony, state the accounts, and make a report to the court upon such matters therein as may be ordered by the court.” It is within the power of an auditor to hear the parties and such testimony as may be presented bearing upon the issues involved ; to summon witnesses and compel their attendance. As incident to his duty he has power to pass upon the facts in controversy, and settle them so far as may be necessary to ascertain the correctness of any debit or credit claimed by either party. Howard v. Kimball, 65 Maine, 308, 328. He is authorized to consider and determine such questions of fact as are necessarily involved in stating the accounts and which are essential to a correct determination of the matters submitted by the court. In doing this he may, if it becomes necessary, determine .whether or not there was a special agreement between the parties in reference to the subject matter even though such agreement, if found, would defeat a right of action, or defense. Thus, an auditor is authorized to consider and determine whether an individual was the authorized agent of one of the parties, when the action is upon an account for goods sold [487] (Locke v. Bennett, 7 Cush. 445) ; to allow or disallow notes or vouchers which enter the account between parties (Barnard v. Stevens, 11 Met. 297) ; to determine whether a corporation was " in funds ” where it had accepted a draft conditionally ( Gould v. Norfolk Lead Co. 9 Cush. 338) ; or, whether there was a special agreement, in a suit to redeem a mortgage, between mortgagor and mortgagee, to treat the principal and accrued interest as a new principal upon which interest should thereafter be computed (Quimby v. Cook, 10 Allen, 32) ; or, in a suit to enforce a lien, to determine whether petitioner's certificate was seasonably filed, whether he has wilfully claimed more than was due, and all matters of fact bearing upon the question of the lien (Corbett v. Greenlaw, 117 Mass. 167). Where the plaintiff sues upon an account annexed for work done and materials furnished, and the defense set up is that there was a special contract for a specific sum, the auditor is authorized to determine whether or not the work was done and materials furnished under such contract. Lowe v. Pimental, 115 Mass. 44. In the case at bar, the suit was upon an itemized account for labor done and materials furnished and the defense was that there was a special contract under which the labor was performed and materials furnished. The auditor so found, and that at the date of the plaintiff’s writ there was nothing due from the defendant to the plaintiff. This was clearly within his province, notwithstanding it defeated the plaintiff’s right to recover. Exceptions overruled.