Durkee v. Woodworth, 43 Vt. 39

Durkee v. Woodworth

43 Vt. 39 | Vt. | 1870

Thl*opinion of the court was delivered by

Pierpoint, C.'J.

It appears, from the report of the auditor, that upon the hearing before him, no question was made as to the correctness of thef plaintiffs’ charges. The only question made was as to its having been paid by the defendant. On this issue the burden of proof was upon the defendant; he must establish the fact of payment, or the plaintiffs would be entitled to a judgment. The auditor reports that from the evidence he was unable to find that the plaintiffs’ claim had been paid.

The defendant insisted that, inasmuch as the auditor has not found that the defendant did not pay the plaintiffs’ claim, he erred in allowing the plaintiffs’ claim. We think this objection is not well taken. It was for the defendant to satisfy the auditor *41that he had paid it; if he failed in this, as the auditor says he did, then the plaintiffs were entitled to a report in their favor.

The defendant further insists that the auditor, in coming to his conclusion as to the payment, considered improper testimony. There does not appear to have been any inadmissible testimony put into the case at the trial; if there was, it was the defendant’s own fault, as he did not object to any of it. The evidence, so far as we can judge from the report, was properly in the case, for what it was worth ; the weight that should be given to it was for the auditor to determine.

But it is said the auditor erred in his conclusions from the evidence as reported by him. This court will not revise the findings of an auditor upon matters of fact. The case is to be determined in this court upon the facts found by the auditor, and not upon the evidence he has before him. It is the duty of the auditor to report the facts he finds, and his conclusions of law therefrom ; but it is not his duty to report the evidence, and it should not be done. It would be impossible for the county court, or this court, to judge of the weight that evidence is entitled to, with the same accuracy that the auditor can, before whom all the witnesses appear and testify. We all know that evidence often has a very different appearance, in respect to the weight that it is entitled to, when presented on paper, from what it has to a person who sees the witnesses and the manner in which they testify. It is possible that, taking the evidence as presented in the report, we might come to a different conclusion from that arrived at by the auditor, yet if we could see the case as it was presented before him, we might be entirely satisfied with the result.

Judgment affirmed.