Herrick v. Richardson

The opinion of the court was delivered by Hebard, J. The plaintiff, in the original action, offered to prove the claim set up in his declaration; and this was objected to, for the reason that the whole subject matter bad been adjusted by the au-* ditor. There can be no doubt but that this objection was well taken, provided the defendant’s claim was a proper matter to be adjusted in a declaration on book account. In an action ex contractu the defendant may plead in offset any matter of contract; and the nature of the claim determines the form and mode of proceeding. If the claim is on book, then it must be sent out to auditors, and there be adjusted ; and-to this the plaintiff may file in offset his book account, so as to arrive at the balance. If the claim of the plaintiff, upon which the main action is founded, is in the nature of book charges, and he submits it to the jurisdiction of the auditor, — as he may do, — and the auditor passes upon and adjusts it, the plaintiff cannot afterwards break away from that adjudication by the auditor and claim a new hearing, upon a different mode of proof, and in a different form of trial, with the hope of a more favorable result. This would contravene the well settled principle of law, under which a matter, once passed upon,by a competent tribunal, is treated as res adjudicata. If the plaintiff consents to merge his original cause of action in a new one, he does so as a matter of choice. He might have refused to submit his claim to the determination of the auditor; but we do not see any injustice in the proceeding, since the result must have been the same. This view of the case is fully sustained by the case bf Cross et al. v. Haskins, 13 Vt. 536. The balance, in .that case, was in favor of the plain-. [379] tiff, but the principle was the same. The main question, therefore, is, whether the subject matter of the transaction could properly be adjusted in the book action. Upon this point, it is insisted that .the matter between the parties was of such a character, that it could not, consistently with legal proceedings, be adjusted in this manner, — but that it should be settled in an action of assumpsit, or account. So' far as convenience is concerned, the book action is preferable to assumpsit, and the remedy is as ample; and little can be said in favor of the action of account over the action on book account. Much of the defendant’s claim was strictly of the nature of book account. The most objectionable part, of all which was submitted to the auditor, was that which the plaintiff himself presented, — being for property delivered to the defendant to sell, and for which the defendant was not chargeable, until he had sold it and had received the pay. But to this the defendant makes no objection, and the plaintiff, of course, has no right to object. The judgment of the county court is affirmed.