Vilas National Bank v. Strait

The opinion of the court was delivered by Veazey, J. Passing from the defendant’s offer of evidence to the evidence itself and the finding of the referee, it will be noted that the arrangement between Vilas, Delaney, and Strait was not to change the place of payment of the notes from the place designated on their face, but simply to provide a convenient agency for sending the money to the bank, where the notes were payable, to [451] pay them there. The language is “that when the notes became clue, he, Strait, could send the money for the payment of the same to Delaney at Swanton, said Delaney could forward it to the plaintiff, the bank, the plaintiff would then return said notes to Delaney, and Delaney could return them to the defendant, Strait.” Many other things in the report point to this arrangement as a method of forwarding the money to pay the notes at the bank where they were held, and where they provided they should be paid, rather than the view that it was a provision for a change of the place of payment. Therefore, the evidence objected to, on the ground that it tended to vary the contract, was not obnoxious to that objection. It would scarcely be claimed that the parties could not agree upon an agency for the transmitting of the money to the hank for the payment- of the notes. We think also that the president of the bank had the right, in behalf of the bank, and without special authority, to agree upon such agency. This is quite a different question from the one so much argued, viz., his right, acting for the bank, but without special authority, to change the place of payment of the notes from the bank to another town and state, they being made payable at the bank. The vital question in the case is this: Was Delaney the agent of the plaintiff or defendant ? This is purely a question of fact, not mixed law and fact; therefore a question to be decided by the trier of the facts, and is not a question for the court; yet the referee has submitted it to be found by the County Court. He says, in effect, if the court find that Delaney was the agexxt of the plaintiff, then the clefexxdaxxt should recover, otherwise the plaintiff should recover. The Couxity Court rendered judgment on the report for the defendant. The case has been argued here by both sides upon the assumptioxi that the Couxity Court found, by inference, that Delaney was agent of the plaintiff; and one side claims that this court should draw the same infer [452] ence, and the other side that.he was agent of the defendant. We hold that neither court should supplement the findings of the referee. Where parties elect to have a referee for their tribunal to find the facts, they are entitled to have that tribunal, not another, find the facts; and especially should they not be compelled to take the findings of the court upon a mere abstract of the evidence incorporated in the report. Kimball v. Baxter, 27 Vt. 628; Darby v. Bank, 57 Vt. 370; Fuller v. Adams, 44 Vt. 543. If counsel fail to ask to have the evasions of a referee corrected upon a recommittal of the report, the court would undoubtedly be justified in rendering judgment on the facts found. This court has, in a few instances, though with hesitation, refused to render judgment upon a record where it appears, as in this case, that a controlling and controverted fact fairly in the case has not been found; and has remanded the cause and ordered a report recommitted for the finding and report of such fact. We think such should be the order in this case. It is plain that a judgment could not be rendered on this report with any certainty that it was the same as it would be with the pivotal fact found and reported. Probably it will be useless to again call attention of referees to their obligation to perform and not evade their duty in the finding of facts in the trial of cases. It has been done repeatedly; yet this fault of referees seems to be adhered to, and the scolding of courts about it disregarded with equal complacency. Judges who censure the fault sometimes commit it when they act as referees. It is a fault at least much too common, causing delay and expense, and undoubtedly often leading to unjust judgments. Judgment pro forma reversed. Cause remanded, to be recommitted to the referee to find and report upon the evidence already taken, whether Delaney was the agent of the plaintiff or of the defendant, in receiving and forwarding money from the defendant to the plaintiff.