Abbott v. Camp

By the Court. It seems to us, the auditor has found substantially, that the articles disallowed in the plaintiff’s account, were furnished upon the credit of Jewett & Co., and that no contract, either express or implied, existed in regard to them between these parties. If it were possible to imply a contract from the facts found, that could only be done by the county court. It is never the province of a court of errors to deduce inferences of fact from a case agreed, a special verdict, or a report of referees, or auditors. From the judgment rendered by the county court, we must conclude, they did not intend to make any such inference. Although Kimball and Jewett and other witnesses standing in the same relation might have had an interest in the subject matter of this suit adverse to the plaintiff, it is impossible for us to see, how the result of this suit can have any just or legal operation upon any suit, in which these witnesses shall be parties. We think, therefore, that they were properly admitted. In the case of Dennison v. Hubbard, 5 Vt., 496, the witness rejected stood more in the situation in which these witnesses would, if offered on the part of the plaintiff. As to the quarrying of the stone, the auditor says, he finds no contract on the part of the defendant to pay for it, and that it was done in pursuance of the contract between Kimball and Jewett & Co. This would seem to be as decisive of the claim, as language is ordinarily expected to be. As to the trimming of the stone, the auditor finds an indefinite contract between the plaintiff and Jewett & Co., which was never countermanded, and which would of course include the whole trimming, but reports certain facts, which have reference to some arrangement, on this subject, between the plaintiff and the defendant, — but nothing which would fully justify any such conclusion ; and finally concludes by saying, that, not being satisfied of any farther contract, he disallowed this charge, (as against the defendant,) leaving it to stand against Jewett & Co. The report seems to be sufficiently intelligible. Judgment affirmed.