Skinner v. Conant

Hutchinson, J. delivered the opinion of the Court. — On inspection of the record in this writ of error, we find the same pro [455] tracted to an unreasonable length, by a totally useless detail of testimony. The county court would have done well to have required the auditors to amend their report, before acceptance, by expunging all the details, and retaining nothing but the copies of the accounts exhibited, and the facts they found proved with regard to each item, nearly in the form of a special verdict, adding which items they allow, and which they disallow. There is no necessity of their reciting upon what testimony they find facts, except when objections are raised to the kind of testimony; in which case, they should state the ground of objection, and their decision upon it. By the detail of testimony in this case, we learn that the agreement of Skinner and Bulkely to see Conant paid, was not in writing ; but a single assertion of that fact in the report would have presented it to the court in much better shape than the one exhibited. The only point, that merits much consideration in deciding this writ of error, is, whether the agreement about paying Conant was original or collateral. If original, the labor is a proper matter of book charge, and no agreement in writing is necessary : if collateral, it cannot be recovered in the action on book ; and, if it could, the agreement must be proved by a writing. In this the counsel are agreed. The agreement reported is, to see Conant paid, if An'drus hired him ; adding that Andrus did hire him.— We can make nothing of this but a collateral agreement. The authorities concur in forcing this construction upon us; and our statute is copied from the English statute upon the same subject. The allegation that Andrus hired Conant, imports, that it was primarily Andrus’1 business to run the still of Skinner and Bulk-ely, in such a sense that he was debtor to Conant; and the contract of Skinner and Bulkely that they would see him paid, means that they would pay him if Andrus did not. If the auditors had found and reported, that Skinner and Bulk-ely had authorized Andrus to hire what extra help was wanted, at his descretion, and have the work charged to Skinner and Bulk-ely, that would have made a different case. Probably they could not have found that fact from the testimony they have recited} though the testimony of Skinner himself squints a little that way, where he says he told Andrus, if he hired any help, he must agree that payment be made in goods at their store. But, without such a fact, not reported by the auditors, there is no way that Conant can recover of the said Skinner and Bulkely, consistently with law. The judgement of the county court is reversed ; and it now remains, that this Court proceed and render such a judgment as the county court ought to have rendered. Clark and Collamore, for plaintiffs in error. JV. Harmon, for defendant in error. ^ *s manifest, though the auditors have not reported it in terms, that the account of Skinner and Bulkely is for payment upon orders to go in part payment for Conanfs work ; and this cannot ^e recovered back, but must still stand in payment thus far. If, therefore, a final judgment be now rendered in the original action,it must be for the original defendants to recover their costs. But, if Conant thinks it probable he can convince the auditors of the fact, that Andrus was authorised by Skinner and Bulkely, to hire what little extra help he wanted, and contract for them to pay in goods at their store, as the auditors have not definitely reported upon that fact, we are willing to send it out to the auditors from this Court, for them to report upon that fact merely, as they shall find the same to be. That is, report, either that Andrus was, or that he was not, thus authorized to contract. On the request of Conanfs counsel the action is again submitted to auditors] to report to this Court at the next term.