77 Vt. 49 | Vt. | 1904
This was an action of general assumpsit. The case was referred and was heard by the referee under an agreement to the effect that any and all pleadings which either
The plaintiff was for a great many years a country merchant. For some'years prior to 1887 he had a partner in the mercantile business, but after that date he carried on such business alone. Aside from his mercantile business, the plaintiff had engaged in the lumber business, a business in which the defendant was for a long time engaged. The plaintiff and the defendant dealt extensively with each other, and at times were jointly interested in lumber transactions. The plaintiff kept books covering- a part of his business with the defendant for the whole time of its continuance, and the defendant kepi books covering a part of such time. Both parties testified, and used, as well they might, books, diaries, scraps of paper, checks, check stubs and various memoranda to refresh their recollection. It appeared that many of their dealings were adjusted at, or about, the time of the dealings themselves, and that so no- entry of them was made on any book of account.
The referee found and the parties conceded that in consequence of the way in which their accounts had been kept, the extent of their dealings, the time covered thereby, and the indistinct recollection of the parties, a condition of uncertainty existed.
Prior to December 1, 1887, and after the dissolution of the partnership referred to-, the parties to- this suit spent several days in looking over their dealings with a view to a settlement; and on said December 1, they agreed that, leaving certain items for future investigation and adjustment, there was then due the plaintiff the sum of $2,158.32. The defendant discusses this adjustment and its effect at considerable length, but we think there can be no question that, in
One of the important findings of the referee is thus stated: “I find that each of the parties intended their dealings, aside from notes, should be a mutual open accomit, and the payments and charges of each should apply on the payments and charges of the other.” The defendant excepted to the report on the ground that he did not get the benefit of the Statute of Limitations with respect to various items which are of such a character that without this finding each would stand by itself in relation to that statute. But this finding shows that, by a common understanding, the parties brought all of their dealings not represented by notes into a mutual account; and throughout this long-continued mutual account items of debit and credit are so far contemporaneous that’ notes alone could be barred by the Statute of Limitations. An examination of the report shows the disallowance of notes
The defendant, in his exceptions to the report, and in argument, claims that various items and classes of items were allowed without evidence. Now, the case has once been remanded, on application of the defendant,, to enable him to avail himself of his claim in this regard and of other claims made by him, but as the case finally comes up this claim as to lack of evidence stands upon assertion merely. All the exhibits have, indeed, been sent up or have been referred to generally, and such long hand minutes as the referee took of the testimony are also> before us. But it cannot be assumed that the referee wrote out the oral evidence in its entirety. If any assumption were to be made, it would naturally be that the referee’s “minutes” were such as he deemed necessary to enable him to refresh his recollection and recall the testimony in full when he came to1 determine his findings and make up his report. There being no showing that the entire evidence is before the court, we have declined to examine the mass of exhibits or to study such minutes of testimony as the referee took, not because the task of doing so would be arduous, but because for the reasons stated it would necessarily be futile.
The defendant seeks to avail himself of the claim' that inadmissible evidence of various kinds was received. But it appears that no evidence was received against the objection of the defendant except evidence relating to one item. This
One of the defendant’s claims is that certain items were, under the Statute of Frauds, not provable by oral testimony. But the Statute of Frauds is, so far as concerns means of proof, a rule of evidence which may be waived, and which is waived unless objection is made to the proof offered. In the hearing before the referee any evidence which may have been obnoxious to- the Statute of Frauds was received without objection and so the statute was waived. Clearly, the parties were actuated by a common desire that the referee should receive and consider whatever might logically aid him in arriving as nearly as might be at an accurate result.
What may be called the defendant’s general exceptions to- the findings and report of the referee are grouped under numerous headings. However, all the points made under these headings have, it is believed, been reviewed in what has thus far been said. At any rate, all the defendant’s claims under these numerous headings have been examined and considered, and all are held to be untenable.
The defendant claims that the report itself shows specifically that certain designated items of his account were improperly disallowed. The referee disallowed these items because he found that they were payments for things not charged in the plaintiff’s specification. In connection with the finding
The defendant, too, calls attention specifically to a list of items allowed the plaintiff and claims that each of these items was improperly allowed; but the claim in the case of each item so pointed out is some one of the ill-grounded claims already considered.
In arriving at an ultimate result, the referee1 computed simple interest on annual balances, and the defendant claims that such computation was improper and illegal. But the rule followed in the matter of interest was that which the well settled law of Vermont made applicable in the situation and circumstances disclosed by the report.
The county court rendered judgment on the report for the plaintiff and that
Judgment is affirmed.