J. & J. H. Peck & Co. v. Soragan

The opinion of the court was delivered hy Bennett, J. The defendant charged in his account an order of one hundred dollars, drawn in his favor by one Smith on the plaintiffs. The auditor reports that the plaintiffs resisted the allowance of this item, upon the ground that it had been paid by them, which, he finds, was not the fact. It is now said that this was not a proper charge to be adjusted in the book action; but it is too late to raise that question. The parties both consented to treat this as a proper item to be adjusted in this action. The plaintiffs put their defence relative to it, upon the sole ground of payment, and we think they should be bound by the finding of the auditor. A stronger case where, by implication, the plaintiffs consent, to have this claim adjusted in this action, is to be inferred, cannot well be imagined. The county court were correct in their decision, allowing to the defendant his costs. It has long since been settled that, under our statute, a tender can be made in the book action. It was made in this case, in due time, was of sufficient amount, and has been at all times kept good. Judgment affirmed.