7 N.H. 535 | Superior Court of New Hampshire | 1835
The objection to the examination of the plaintiff, as a witness in chief, by the auditor, is in the nature of a motion to set aside the report. But such motion cannot prevail on the case before us.
Where actions upon accounts are tried before the jury, the practice, which has prevailed, of admitting the book of the party in evidence, with his oath supplementary thereto, stating that he delivered the articles, and made the charges at or about the time they purport to have been made, has never extended to make the party a witness in chief, unless Ms adversary chose to make him so by a cross examination.
But the statute giving the court power to appoint auditors evidently contemplated an examination of the parties in some cases ; for it prescribes what course is to be pursued if any party shall refuse or neglect to render an account, or produce such books and papers, and to answer on oath such
The statute is not in its terms compulsory upon auditors, but gives them the power to require either party to submit to an examination under oath ; and there is nothing to show that this examination may not be made on the motion of the party himself. This power of the auditor to examine the party must be subject to the supervision of the court; and upon a case which showed that injustice had probably been done, by admitting one of the parties to testify, we might set aside the report, or recommit it, as the case might require. But nothing appears in this case to show that the examination of the plaintiff was not a sound exercise of the power vested in the auditor. In fact, as the statute has authorized the examination of the parties, it might perhaps require explanation should an auditor refuse to examine.
But it is said that better evidence existed. On the trial of an action, upon an account, before a jury, if it appear that the goods were delivered to third persons, the books of the party, and his oath, cannot under our practice be admitted as evidence to sustain the charges, because the case shows that better evidence may be produced ; but when the statute has authorized the examination of the party, generally, that rule can no longer apply. Any evidence that the statute allows, is good evidence, and auditors, therefore, may examine the parties, even if it appear that the articles were delivered to third persons, and give their testimony the weight to which it is entitled, under the circumstances of the case.
The next objection goes to the merits of the action. It appears that the money and goods, for which the plaintiff now seeks to recover, were originally delivered to the defendant’s agents, in part payment of a debt then due from the plaintiff to the defendant; so that at the time of the delivery, and afterwards, until the defendant required and received the full amount of his claim, without any deduc
The soundness , of that decision may well-be.questioned. There, after a pair;of oxen had been delivered as. a partial, payment upon a note, the . creditor without indorsing. the .amount, brought an action and took judgment for the full sum appearing, to be due ; and the debtor then brought an action to recover the -value of the oxen. . The court thought that as the oxen were passed in part payment, and hot on a contract of sale on credit, so that an action could not have been sustained for them before the- rendition of judgment on the note, the suit, if supported at-all, must be so on the. ground that the defendant recovered'more/in the action on the •note than was due to him, and that to sustain the action would violate the principle that the merits of-a judgment, duly .rendered, and not reversed, cannot be reexamined in a new action, founded on evidence which woul'd-have made a defence to the original suit. ' . - - - -
But another view may be taken of that case. Although the oxen were agreed to be delivered and received-in part payment of the note, and were so delivered and received, it was undoubtedly competent for the parties' to agree to rescind that contract and substitute another, by which the debtor-should pay the amount of the note, and the creditor be liable for the value of the oxen, as if they had been sold without reference to the existence of the notes 1 D. & E. 133, Towers vs. Barrett; 7 Bing. 266, James vs. Cotton.
- In such case no doubt could exist of the fight of the party to sustain ,an action for the oxen. And it is equally
Thus, where upon an agreement for the purchase of land, the party paid a part of the money, and the owner after-wards refused to receive the residue and execute a deed,.the contract was held to he rescinded, and the money paid was recovered back tinder a count for money had and received. 7 Johns. Rep. 85, Gillet vs. Maynard.
So where a part of the purchase money for goods was advanced, and the seller afterwards refused to deliver the goods. 12 Johns. 274, Raymond vs. Bearnard.
So where work and labor were performed for .the defendant, under a contract to labor a certain time for a specified compensation, and the defendant prevented the completion of the whole labor, the contract under which the labor was performed was held to'be-rescinded, and the plaintiff recovered for what was done on a quantum meruit. 4 Pick. 114, Hill vs. Green.
And so in Tilton vs. Gordon, when Gordon took his judgment for the full amount, without deducting the payment received by means of the oxen,-Tilton might well elect to, consider that as a rescinding of the agreement to receive the oxen in payment, and Gordon would then have stood indebted to Tilton for the oxen received of him, and this would not have brought the merits of the judgment in question. 16 Mass. R. 306, Rowe vs. Smith.
That case, however, if it were rightly decided, differs from this, inasmuch as here there is no judgment to encounter ; and the very principle, therefore, upon which that case turned cannot here come in question. ■
When the defendant.refused to apply the money and goods received by his agents in part payment of the notes, and required the full amount of them, and Redington, in behalf of the plaintiff, paid it, the agreement under which the money and goods were received must be considered as rescinded by the acts of the parties ; and then the plaintiff may treat the
The remaining objection, founded on the offer of Moore to pay for the bricks he had received, cannot avail. The bricks having been delivered under an agreement that they should be received in part payment of the notes, any offer of Moore to pay for them, or any tender of money by him, could not prevent the plaintiff from relying upon the receipt of them as a payment. He was not bound to take the money, if it had been tendered. But when the defendant afterwards refused to apply them in payment, and rescinded the agreement under which they were received, the plaintiff’s cause of action arose.
And, moreover, there was in fact no tender, nor any thing that amounted to one. It does not appear that Moore had any money with him when the conversation took place. 5 N. H. R. 440, Sargent vs. Graham.
Judgment for the plaintiff.
