Goodnow v. Parsons

Kellogg, J. The admissions of the defendant that there was no trouble with the plaintiff’s charges, or with the debit side of [51] the plaintiff’s book wero clearly proper evidence tending to show his assent to the correctness of the charges, and no exception lies to the judgment of the referee in respect to the credit or weight which he gave to the legal and proper evidence in the case. If the evidence was proper to be received, the referee was the exclusive judge of its sufficiency to establish the fact which it tended to prove, and his finding in this respect can not be reviewed on exceptions. We do not regard the defendant’s objection to the reception of the admissions of the plaintiff in respect to the quantity of lime delivered to him by the defendant as being well founded. The referee was not satisfied with the proof introduced by the defendant on this point, and adopted as the basis upon which to determine the amount of the defendant’s offset in this respect the credits as entered upon the plaintiff’s book, and the admissions of the plaintiff, sustained by the testimony of his son, who was a clerk in his store, as to the difference in the quantity claimed by the defendant and the quantity credited on the plaintiff’s book, on the occasion of a previous attempt at a settlement, when the defendant’s book was present. The effect given by the referee to the admissions of the plaintiff was, to the extent of those admissions, in favor of a claim of the defendant against the plaintiff, and the admissions were not received by the referee otherwise than as a recognition by the plaintiff of the defendant’s claims against him to the extent specified in the admissions. Neither were the admissions received to' corroborate the testimony of the son, as insisted on by the defendant. On the contrary, the referee’s report shows that the testimony of the son was introduced to corroborate and sustain the accuracy of the plaintiff’s credits; and after the referee had found that the defendant’s specification and proofs in respect to the quantity of lime delivered by him to the plaintiff were not reliable, the plaintiff’s admissions became evidence in favor of the defendant upon that point; and the referee’s report does not show that he received the admissions for any purpose except as an acknowledgment by the plaintiff of liability pro tanto on account of the [52] lime delivered to him by the defendant. It does not appear that these admissions were made by the plaintiff while testifying as a witness on the trial before the referee, and no statement in the referee’s 'report relating to the admissions is inconsistent with the fact that the defendant himself might have introduced and used them on the trial as evidence in his. own behalf. The note numbered 2, payable to Ranney, was by its terms payable with interest; and was for a sum certain, payable in lime. It would, 'of course, carry interest according to its terms. This note Was not negotiable, although made payable to Ranney, or bearer, because it was not payable in money absolutely. The defendant knew that the plaintiff held this note, and it was “ looked over ” by.him while in the plaintiff’s hands, and he made no objection to this note at that time. The report does not show any distinct express promise by the defendant to pay the note to the plaintiff, but we think that the course of dealing between the parties, and the knowledge of the defendant that the plaintiff held this note, and his making no objection to the note when it was presented to him by the plaintiff, in .connection with the fact that large quantities of lime were delivered by him to the plaintiff, would fairly justify the inference that there was a mutual expectation of the parties that the defendant’s claims against the plaintiff for the lime so delivered would be settled in connection With this note, and that the note should be adjusted between them in that way. This would support the allowance of the note made by the referee in adjusting the defendant’s claims against the plaintiff for deliveries of lime; and wé do not think that the referee erred in making this allowance. The pajser numbered 28, to the admission of which as evidence by the referee the defendant objected, was received by the referee as evidence tending to prove a date or time which became material in its connection with the testimony of the plaintiff and his son as detailed in the referee’s report. That testimony tended to show that this paper was shown to the defendant, and although the referee has not found that it was in fact shown to the defendant, or that the date on the paper was authentic or sufficiently [53] established, yet from its connection with the testimony of the plaintiff and his son in respect to the date or time when the parties examined their accounts, it had a tendency to prove a fact denied by the defendant, which became material on the trial; and if it had any tendency to establish the .fact so controverted, there wás no error in its admission by the referee as evidence,^ The report does not show that there was any express agreement between the parties in respect to the rule of computing interest upon their respective accounts, or that the defendant had any knowledge of the plaintiff’s custom or course of dealing in computing interest on his accounts. The plaintiff’s claim to interest computed on. the monthly balances of his account must stand either on the express contract. of the parties, or on a contract implied from their course of previous dealing, or from the other special circumstances of the case. It is settled in this State that in cases of ordinary running accounts on book, not controlled as to interest by a different contract, express or implied, the rule of computing interest is to make annual rests and to allow interest thereafter on the balance in favor of the party to whom it may be due. A person dealing with another has a right to rely upon the application of this rule on the settlement of his account, unless the circumstances of the case are such as to affect him with notice or knowledge of the usage, custom, or claim of his creditor to compute interest by making rests at shorter periods than one year; and the defendant’s dealings with the plaintiff must be taken to have been had with the expectation that they would be adjusted according to the settled rule and custom, unless it is made to appear that he' had information that the plaintiff would insist upon a different rule. There is nothing in the referee’s report which will warrant the inference that the defendant knew any thing about the plaintiff’s practice or custom in respect to casting interest on his accounts ; and the report does not show any special circumstances from which a contract on the part of the defendant to pay interest according to the rule insisted on by the plaintiff and adopted by the referee can be inferred. The plaintiff’s practice or custom in this respect would not take [54] the case out of the operation, of the ordinary rule, or become binding upon the defendant, until the defendant was informed of' it, and would then be applicable only to the subsequent dealings between them. These views are fully supported by the oases of Langdon v. Town of Castleton, 30 Vt. 285 ; Birchard v. Estate of Knapp, 31 Vt. 679 ; and Wood v. Smith, 23 Vt. 706 ; and, as the referee’s report does not show any such f^cts as would warrant the computation and allowance of interest on the monthly balances of the plaintilf’s account, the judgment of the county court allowing the plaintiff to recover interest so computed is reversed, and judgment is to be rendered in favor of the plaintiff for the balance in liis favor on the claims allowed by the referee to the parties respectively as stated in the report, with interest on the yearly balances of account according to the ordinary rule, instead of interest on the monthly balances as computed by the auditor.