Fuller v. Adams

The opinion of the court was delivered by Ross, J. The referee has found that the plaintiff’s charge for the services of Ebenezer Hutchinson ought not to be allowed. This is equivalent to finding that his employment about the arbitration was not reasonable, and if so, the plaintiff is not entitled to recover for his services, though she had paid for them. The referee has attached to and made a part of his report the affidavit of Mr. Hutchinson, but has not found that the statements in the affidavit are true. The county court were not, therefore, at liberty to treat the statements in the affidavit as true, and from them find the charge for Mr. Hutchinson’s services reasonable, and overrule its disallowance by the referee. The.county court is not a tribunal for finding facts, unless made such by the assent of the [546] parties, and in case of a reference, can only pronounce tlie law upon the facts found by the referee. This item in the plaintiff’s charges must be disallowed. The referee has found the’ other charges by the plaintiff reasonable. It is immaterial whether the plaintiff pays Mr. Fullam for his services or not. The referee has found that the services were reasonably required, and the charges reasonable. If he chooses to give the plaintiff his services, they are a gift to the plaintiff and not to the defendant. Judgment of the county court is reversed, and judgment rendered for the plaintiff on the report for 1134.01.