Dodge v. Moulton

42 Vt. 184 | Vt. | 1869

The opinion of the court was delivered by

Wilson, J.

The questions in this case arise upon the report of an auditor. It is insisted by the defendant’s counsel that the report does not show sufficient facts to sustain the judgment of the county court. The points urged by the defendant in this court relate principally to the testimony, and undoubtedly they were made before the auditor and urged there as matter of evidence, and considered by him as tending to show that the defendant did not become liable to pay the plaintiffs’ debt. It is well settled that if evidence be given before an auditor, which has a legal tendency to prove a fact in controversy before him, his decision upon the, weight and sufficiency, of the evidence is conclusive. Wood v. Barney, 2 Vt., 369 ; Phelps v. Wood, 9 Vt., 399 ; Cottrill v. Vanduzen, 22 Vt., 511. This rule is established by the whole current of decisions in . this state upon .this subject. '¡The evidence detailed by the auditor tends to prove that the services were rendered upon the credit of the defendant, and upon his express promise. t.o. pay -reasonable .charges therefor. We, think, from the evidence, the auditor might legitimately find an -original .undertaking ón the part of the defendant to pay the claims.- The auditor has found, as matter of fact, that the'plaintiffs, as physicians, attended upon the .defendant’s daughter during, her sickness, upon the defendant’s credit, and that,-he promised to pay them for .their services, including their services, for two or three .visits made prior to any express understanding between the parties in relation to payment of the plaintiffs’ bill. ' '

The findings of the auditor are, not before us for revision, except as to questions of law arising upon the facts found by him, and upon those facts we think the plaintiffs are entitled to judgment. Clark v. Whipple, 12 Vt., 483. As to the sufficiency of the consideration to support the defendant’s promise to pay the whole bill, the facts bring the case within the principle decided in Roberts v. Griswold, 35 Vt., 496.. That was an action on a guaranty that the defendant would hold himself accountable that Griswold should pay the plaintiff for all professional services he had .rendered or might render him in the suit. It was there held that there was a sufficient consideration for the . guaranty ; that it covered both past and future services of the plaintiff in that suit, and also his disbursements for clerk and court fees in the case. In the case before us we think the .defendant’s undertaking and promise, though not entered into and made when the plaintiffs commenced rendering their services, should have relation back and cover both past and future charges for doctoring his daughter.during that sickness. There is 'nothing in the caso tending to show that the defendant, in his engagement to be,.accountable for the plaintiffs’ services, proposed to limit Ms liability to payment for services which the plaintiffs should thereafter render;,,but, upon the facts presented to us by the auditor, it would seem that the defendant intended his engagement and promise should cover the whole bill. But there is another ground on which the' plaintiffs are entitled to recover for their services rendered before as well as those rendered after the express undertaking of the defendant. It appears that the defendant’s counsel, on a former hearing before the auditor, raised the question as to 'the plaintiffs’ right to recover for any services rendered previous to any express understanding that the defendant should be liable to pay any- portion of the bill,, but it appears from the report that the defendant’s counsel finally waived the question and point, thereby leaving the plaintiffs to recover the whole if entitled to recover at all. ' This being so, -the auditor had no occasion to report more definitely as to the amount of the services rendered prior to the defendant’s express engagement.

We find no error in the proceeding of the auditor, and the judgment of the county court is affirmed.