Leach v. Shepard

The opinion of the Conrt was pronounced by Hutchinson:, C. J. The first exception- to the report of the Auditors, raises a question, which goes to the whole action. The plaintiff’s account consists of one item only, and that a pretty large one; being for 2083 pounds of wool — amounting to several hundred dollars. Whether [368] charge can be recovered in this form of action, must depend upon the facts found and reported. It does not seem practicable to decide as to the form of the action, merely from the magnitude or value of the article charged. While the ordinary deal between A and B may comprise articles of a small quantity, and of a few cents value only, that between C and D may be a wholesale deal, and of a value extending to hundreds of dollars. Nor, in this respect, does it make any difference, whether the charge be 2088 pounds of wool, or the fleeces be charged separately, as delivered at the same time. The weight of evidence may be assisted by particularity; but it need not affect the form of action. There is such an infinite variety in the trading transactions among mankind, the distinction between what may, and what may not, be litigated in the book action, must be drawn from the character, not the amount of the deal. Where the claim is, to recover for property sold and delivered, and to recover its fair value, there appears no very weighty objection to recover in this form of action. It is urged, that it lets the party in as a witness, which is improper in such large claims. It does let in the party as a witness; but it lets in both parties to the same point.— The testimony of one may neutralize that of the other; or may be fully confirmed by the silence of the other, when called upon to testify. It is not a matter of course to allow a charge on book, whether large or small, because the party swears to it. His testimony must be weighed in connection with all other testimony on both sides ; and will be affected one way or the other by the regularity of his books of account, or the want of such regularity. Nor will it change the form of action, that the price charged, was agreed upon by the parties. That is good evidence of its fair value. But the claim must be for the value of property sold and delivered, or of services done and performed. It must not be a mere claim for damage for not performing some special contract, nor for compensation for a tort committed. If we understand the defendant’s counsel, they scarcely deny there being a sale of the wool. They say, there were [369] terms and conditions, and and some risk on the plaintiffs about the price that would be realized in market. These things, if proved, would have a bearing upon the price.— But this part of the defendant’s argument, does not seem well sustained by the facts reported by the Auditors. They report a contract, that the defendant should buy the wool of the plaintiffs, and that it was delivered at the time agreed on. This amounts to an absolute sale of the wool. They also report a minute made at thé time of delivery, and that the same, shortly afterwards, was charged on book. But they also report, that certain terms and conditions were agreed upon, and speak about a choice left to the plaintiffs about retaining some risk about the market price. Two reasons are apparent, why this should not affect the decision of the cause. 1st, The Auditors not only have not reported what these terms and conditions were, but they have reported it to be Uncertain what they were. Probably the testimony was too indefinite, or too contradictory, for any result to be drawn. What, then, should be the effect of this upon the action ? Plainly, the party who would wish to derive benefit from these terms and conditions, & a power of choice, &c. fails to prove what he relies upon. Hence he derives no benefit from it. 2d, The Auditors have reported, that, whatever election should be made among those terms and conditions, was to be made at the time of the delivery of the wool, which was a few days after the contract of sale.* It not appearing that any election was made at said time of delivery, it must stand as a general sale. Indeed, in all cases of a sale and delivery, the law attaches to the person who purchases and receives the property, a liability to pay for the same according to its fair value, and that within a reasonable time.— And, if the purchaser is disposed to contend for any thing different from this, the burden of proof is on him, to show something that will lay the foundation for a different result In this case, the Auditors have found a sale and delivery of the wool; and the defendant has failed to prove before them any fact, varying the liability which the law attaches to such sale and delivery. There appears less importance in another principle, [370] now presented. The Auditors, to their first report, attached a copy of the plaintiffs’ account, but none of the de-tendant's. For this, neglect, the report was recommitted. They have attached a copy of this to their second report* stating which iteras they have allowed, and which they have disallowed; and have added, that this is but the transcript of the same account exhibited and adjudicated upon, at the making of their first report. They have also reported the correction of a mistake in computation in making their first report, of about twenty dollars. The defendant’s counsel raise no objection to all this; but they-complain, that the defendant, at the last meeting of the auditors, was denied a hearing upon the whole merits of the case. This we must understand to mean a rehearing upon the whole merits, heard at the first trial, and presented in the first report. The rule of recommitment does not define what the Anditors were further to do ; but they drew a just inference, when they decided to do what they before had left undone, and for the not doing of which the cause was recommitted. They were under no obligation to go over the whole ground again, and report anew upon the-whole testimony. Nevertheless, if important new testimony was presented, not in the power of the party at the first hearing, they ought to have listened to this, and let it produce a just effect upon the cause. But there is no pre-tence that any such new testimony was offered before the Auditors. Smith & Sargeant, for the'defendant. Bennett fy ¿Liken, for the plaintiffs.. Upon the whole, we consider, there is no error in the judgement, rendered by the County Court, upon the reports of the Auditors, and their judgement is affirmed.