| Me. | Jan 8, 1876
The first exception urged by the defendant is to the allowance of the amendment by the introduction of the fourth and fifth counts describing the order drawn by Rufus K> Page, July 23, 1856, and accepted by Nathaniel Kimball the defendant’s testator, on the ground that this constitutes a new cause of action. We cannot so view it. As it stood previous to the amendment, the plaintiff’s writ showed that the greater part of his claim consisted of sums alleged to have been due from Kim-ball originally to Page and to have been so transferred by Page to the plaintiff with Kimball’s assent as to enable the plaintiff to sue therefor in his own name. This appears not only by the
The new counts are simply descriptive of the instrument by which the plaintiff undertakes to make out his title to the amount due Page, a.nd Kimball’s promise to pay it to him as Page’s assignee.
They serve to make known more particularly the origin and character of the plaintiff’s claim which had been previously stated in general terms, without introducing any substantially new cause of action.
The amendment was allowable under the statute (c. 82, § 9,) and numerous decided cases to which it is unnecessary to refer.
II. Page’s order of July 23, 1856, directed to Kimball and accepted by him ran thus: “Value received, pay to the order of A. II. Howard, cashier, any balance there may be in your hands on settlement of my account with you,” &c., and was indorsed, “Pay A. II. Howard, or order. A. H. Howard, cashier.” The exceptions show that the defendant objected to the admission of the order in evidence under either of the amended counts, — under the fourth on the ground that it was not negotiable, not being for a sum certain, and if it were, then the plaintiff as cashier of the American Bank could not negotiate it to himself, without special authority from the bank; and under the fifth on the ground of a variance.
Hpon the objections to its admissibility in support of the fourth count the exceptions state that the presiding judge made a pro forma ruling that the order was negotiable and that the plaintiff had authority to indorse and negotiate it to himself as he did on the ground that the word cashier was but descriptio personae, and the order was admitted in evidence.
It is obvious that, whether technically correct or not, this ruling cannot have done the defendant any injustice if it can be made certain that the order was admissible under any one of the counts in the writ and operated as a legal transfer to the plaintiff of the balance due from Kimball to Page, July 23, 1856, so as to enable.
To the writ as amended the defendant pleaded the general issue with a brief statement that the plaintiff’s suit was barred by the statute of limitations, and by the judgment of this court in defendant’s favor upon a suit in equity brought by the plaintiff, which suit (the defendant alleges) involved the same causes of action set forth in this writ.
It is conceded that the action is not barred by the statute of limitations. The remaining questions then were: did the plaintiff ever have any cause of action, and if so, for how much; is it barred by the judgment in the equity suit. Among the facts not controverted it appears that prior to July 23, 1856, Kimball and Page had large business transactions together, growing mainly out of their ownership of parts of the same vessels, for which Kimball acted as ships’ husband ; that aside from the transaction between them respecting Page’s half of the ship Ocean Steed (the character and effect of which are presently-to be considered), Kimball was indebted to Page in a considerable amount on account of transactions respecting other vessels; that Page was largely indebted to the plaintiff by reason of the plaintiff’s indorsements on his paper, and was desirous to secure him for his liabilities ; that Page had conveyed by an absolute bill of sale his half of the ‘Ocean Steed to Kimball, and received therefor Kimball’s three negotiable promissory notes for $5000 each, two of which, if not all three, were deposited at the American Bank as security for the liabilities of Page, and Need & Page to the bank, amounting to about $8000; that ail three of the notes were subsequently paid and taken up by Kimball, one of them being offset against a note-of Page held by Kimball and an order on Kimball from Page in favor of one Cox, and Kimball’s disbursements on Page’s part of ship Lion at St. Johns; that on the 23d of July, 1856, after the giving of these notes and the conveyance of Page’s half of the Ocean Steed about the time of his failure in business in the preceding April, Page made and Kimball accepted the order in question, and it was delivered to the plaintiff. Thus far no controversy as to the facts.
Why three experienced business men should perform an act so completely nugatory as the making, acceptance and delivery of this order must be, if this hypothesis of the defendant’s were to be accepted, it is not easy to see. Certainly they must have intended thereby to transfer an interest in the amount due from Kimball to Page either to the bank or to tbe plaintiff. If to the plaintiff, then it matters not whether the order was or was not technically speaking negotiable, nor -whether the plaintiff had any authority to indorse it to himself, because it would follow that the interest passed at once to the plaintiff; the word cashier must be regarded
The defendant’s counsel argues that the most favorable ruling for the plaintiff which the law would authorize was to submit it to the jury to determine as a question of fact whether it was given to the plaintiff or the bank.
Had there been any evidence which would have authorized the jury to conclude that the bank ever had any interest in the order this would seem inevitable. But looking at the whole evidence we think this idea is conclusively negatived. The testimony must be regarded as establishing the fact that the bank was abundantly secured for the indebtedness of Page and Heed, and Page, by the Ocean Steed notes. So far as appears neither the president, directors nor receivers of the bank ever recognized the order as a matter in which the bank ever had any interest. As long ago as 1869, the receivers disclaimed such interest upon the docket in this suit. In fact no such interest appears ever to have been asserted, and there is nothing in the case, to afford the slightest indication of its existence except the description of the plaintiff as cashier. In view of the other facts proved, we think the only reasonable conclusion was the one expressed in the ruling of the judge that this was only descriptio personae.
If so it did not change the legal effect of the order any more than the addition of esq. to the name of the payee would do. It would follow that the order was admissible under the third count and sufficient to show title in the plaintiff to the amount due from Kimball to Page, July 23, 1856, whether the order was negotiable or not, and without proof of authority from the bank to indorse it.
The trial took place before the passage of the 'statute, c. 212, laws of 1871, and prior to that time it was the doctrine of this court that when the whole testimony, if believed, will not in law establish a faet, the presiding judge may express the legal effect of the' testimony as matter of law. Gilbert v. Woodbury, 22 Maine, 246.
Whether the ruling that the word cashier was merely descriptio
It is obvious as we have already seen that if this be so, the rulings in respect to the negotiability of the order or the authority from the bank to indorse it were purely immaterial. We remark in passing, that we see no propriety in extending the doctrine of Fairfield v. Adams, 16 Pick., 381, to any other than strictly negotiable securities, nor to cases where the holder claims distinctly to recover to his own use and not in any fiduciary capacity; nor do we perceive how it would be possible for the plaintiff to maintain this suit for the benefit of the bank which confessedly has no interest therein.
III. In connection with the ruling above discussed, we observe that none of the objections to the testimony admitted on behalf of the plaintiff seem tenable. The first, against the deposition of li. K. Page on the ground that it was not competent thus by parol to explain or affect the order, is not insisted on in argument hero, and the answer is obvious that it was not offered for that purpose and does not tend to vary or contradict the written instrument but only to apply it and show the mode and purpose of its delivery, and like the testimony given by the receiver and president of the bank it is relevant and admissible for the purpose of showing that the bank had no interest in the order and claimed none. It is only by the admission of parol evidence to show that the plaintiff was, at the time of the making and delivery of the order, cashier of the American Bank that the defendant obtains an opportunity to argue that the bank may have had an interest therein, and the same kind of evidence is admissible to rebut the presumption which was required to raise it. It is no violation of the wholesome rule which prohibits the introduction of parol evidence to contradict, vary or control the terms of a written instrument.
It is true that the questions to the receiver and president of the bank servo only incidentally and indirectly to confirm the plaintiff’s position that the order was made to secure him and not the bank
IY. Before the case came on for trial it had been submitted to a competent and faithful auditor upon whose report the plaintiff relied. "We are now to consider the exceptions taken to the admission of his report and the rulings respecting it. The exceptions state that the report of the auditor was offered in evidence by the plaintiff and was seasonably and duly objected to, but admitted by the court except that portion which makes the accompanying documents and evidence a part of the report. What the objection made at the trial was does not appear. In strictness the exception to the admission is liable to be overruled for this cause alone. Emery v. Vinal, 26 Maine, 295. Comstock v. Smith, 23 Maine, 202. White v. Chadbourne, 41 Maine, 149. But if we allow ourselves to infer that the objection alleged was the somewhat inconsistent one now urged in argument, that the evidence before the auditor was irregularly made part of the report and also that that evidence was not allowed to go to the jury so that the defendant might impeach the report by showing that its conclusions were not warranted by the evidence, we do not think it can be sustained. If the defendant desired to use that evidence to impeach the report, doubtless he might have had the opportunity by waiving his objection to the return of it as part of the report. His objection to its introduction by the plaintiff as part of the report was rightly sustained. We are clear that it is competent for the judge presiding at the trial, when an auditor’s report is offered in evidence to reject such portions of it as are not proper to go to the jury and receive the remainder, ruling upon the introduction of those parts which are objected to as he would in the case of a deposition. Jones v. Stevens, 5 Metc., 373. The defendant was at liberty to put in
But the defendant complains also of the ruling with regard to the force and effect of the auditor’s report. As stated in the exceptions it was that “the auditor’s report was prima facie evidence of the amount which the plaintiff was entitled to recover, that it was competent for the defendant to disprove it, but it must stand unless he had impeached it.” It is argued that this instruction had the effect to change the burden of proof from the plaintiff to the defendant; when on the contrary if the defendant’s evidence balanced the force of the report the plaintiff ought to fail. The language of the statute is, the “report may be used as evidence by either party, and it may be disproved by other evidence.” What does this imply ?
Neferring to the former statutes respecting auditors and their functions we find that by the law of 1821, c. 59, (after regulating in §§ 23 and 24, the course of proceeding in the now somewhat disused action of account), in § 25, provision is made that “in any action when it shall appear to the court that an investigation of accounts, or an examination of vouchers is necessary for the purposes of justice between the parties,” auditors may be appointed by the court to state the accounts between the parties and to make report thereof to the court, which report “shall under the direction of the court be given in evidence to the jury; subject, however, to be impeached by evidence from either party.” By the Laws of 1826, c. 347, this § 25 is repealed, the power of the court to appoint on motion of either party is limited to the first four days of the term when the action is entered, though an appointment may be subsequently made with the consent of both parties; “and the duty of auditors so appointed shall be to arrange the items of the accounts depending, consider the principles on which they depend and examine the vouchers offered in their support, and as far as convenient note the same in their statement; ”
Under the revision of 1841, c. 115, §§ 49, et seq., the appointment was to be made by consent of parties; witnesses might be summoned and compelled to attend “as before referees;” the report might be “used by either party as evidence on the trial of the cause before the jury ; but shall be open to be impeached or disproved by other evidence.”
In the revision and condensation of 1857, c. 82, §§ 59, et seq., (of which the present law found in R. S. of 1871, c. 82, §§ 62, et seq., is an exact transcript,) there came full power to the court at any proper stage of the cause in the class of cases requiring it, with or without the consent of the parties, to appoint auditors “to hear the parties and their testimony, state the accounts, and make a report to the court.” They are invested with the more important incidental powers of a subordinate tribunal and charged with the performance of its duties. “Their report may be used as evidence by either party, and it may be disproved by other evidence.” The power to compel the attendance of witnesses and to hear the parties and their testimony would be nugatory unless accompanied with a power to pass upon the facts in controversy. Evidently we think there is implied here a power to settle such controverted facts as may be necessary to ascertain whether the debit or credit claimed ought to be allowed.
The results reached by the auditor are not conclusive upon the parties, but his report when offered in evidence is subject to be impeached, rebutted, controlled or disproved by competent evidence to be laid before the jury. But it amounts to prima facie evidence sufficient to warrant a verdict unless thus impeached or disproved. This is the view of its effect taken by the court in Massachusetts in a series of decisions under statutes substantially similar. Allen v. Hawks, 11 Pick., 359. Lazarus v. Commonwealth Ins. Co., 19 Pick., 81, p. 97. Taunton Iron Co. v.
Some of these cases go further and sustain the doctrine that the burden of proof is thereby changed.
But in the discriminating opinion in Morgan v. Morse, 13 Gray, 150, while attention is called to the loose and inaccurate mode of using the phrase, (the presiding judge having instructed the jury that the burden of proof was upon the defendant to overturn or control the auditor’s report,) it was held not likely to mislead the jury and that the defendant was not aggrieved, and the general doctrine above stated is approved.
Bigelow, J., remarks that “it would have been more correct for the court to have instructed the jury that the report of the auditor in favor of the plaintiff was prima facie evidence, and sufficient to entitle him to a verdict unless it was impeached and controlled by the evidence offered by the defendant.” The instruction thus commended is substantially the same as the one of which the defendant here complains. We think it unexceptionable. If the defendant had desired a more elaborate dissertation upon the burden of proof he should have made specific requests for instructions respecting it.
Y. This writ was sued out July 23, 1863. Almost simultaneously, by a bill in equity brought against this defendant and Rufus K. Page and filed July 24, 1863, the plaintiff claimed that the conveyance of Page’s half of the Ocean Steed to Kimball though absolute in form was intended only as security for the $15,000 in notes advanced by Kimball to Page to raise money upon, and that the conveyance and notes were to be subject to a settlement of the mutual and open accounts then subsisting between them and to such agreement as upon such settlement might bo made between them; that upon an examination and adjustment upon this basis, in November, 1859, it was ascertained that Kimball was owing Pago about $10,000 on the accounts, and reckoning in the notes which had been paid by Kimball, there was due Kim-ball, $5000, for which he held Page’s half of the ship as security and in trust; and that it was then and there agreed between Page,
The defendant in her answer, upon information obtained from said Kimball, denied the trust, insisted that the sale of Page’s half of the ship to Kimball was absolute in reality as well as in form, “and not intended to have any connection with or bearing upon any settlement of any accounts subsisting between them,” and that Page had no equitable interest in the ship which he could make over to the plaintiff. The case proceeded to a hearing upon bill, answer and proof. As it appeared that Page had made an assignment under the statute for the benefit of all his creditors, October 5, 1857, it was held that whatever the character of the conveyance any interest remaining in Page passed to his assignees before the alleged agreement of November, 1859, and so the plaintiff had no title.
The bill was dismissed with costs; and the defendant now claims that the judgment in that suit is a bar to this.
We cannot so view it. The question whether the plaintiff took anything by the attempted adjustment of the accounts and transfer of Page’s supposed right of redemption in the Ocean Steed to him in November, 1859, is not identical with the question whether he acquired Page’s interest in those accounts by virtue of Kim-ball’s acceptance of an order in his favor, July 23, 1856. This latter question was not even incidentally decided in the equity suit.
To ascertain whether a former judgment is a bar to present litigation the true criterion is found in the answer to the question: was the same vital point put directly in issue and determined. 8 Am. Jur., 330-335. Outram v. Morewood, 3 East., 346. Greenl. on Ev., part III., vol. 1, §§ 528, 529, 530. Lord v. Chadbourne, 42 Maine, 429, p. 443.
VI. The point that the plaintiff should have been prohibited from prosecuting this suit until he had paid the judgment against him for costs in the equity suit is not pressed in argument. Clearly the case is not within the provisions of R. S., c. 82, § 111, and the defendant’s motion was rightly overruled.
VII. The defendant contends that the verdict should be set aside as against the evidence.
This claim is founded upon the position that the proceedings in the plaintiff’s equity suit and the testimony therein taken, (which seems to have been admitted here by consent of both parties,) conclusively prove that the character of the transaction between Page and Kimball was as therein asserted a loan of the notes, a reception of the conveyance of Page’s half of the ship as security and in trust merely, coupled with an agreement that the balance of account due from Kimball to Page should go to offset or pay the notes loaned, Kimball to hold the ship as security for the diferonee only, and that Page’s right of redemption passed to Messrs. Danfortli & Spaulding his assignees.
The jury found otherwise, at all events so far as regards the agreement to offset the accounts against the notes given for the Ocean Steed. But this finding, though adverse to the testimony produced by the plaintiff in the equity suit, is in accordance as we have already seen, with the position then taken by this defendant that the sale was absolute and had no connection with the settlement of the accounts; and this receives confirmation from the fact of the making of the order (which would otherwise be an idle ceremony) and from the use which was agreed to be made and was made of the notes given by Kimball, whereby such an offset was precluded. The subsequent attempt by Page, Kimball and the plaintiff to arrange for a redemption, being abortive, ought not to be allowed to affect the rights of the plaintiff originally acquired by the assignment of the account and Kimball’s acceptance.
The existence of any right of redemption in Page in the outset
The plaintiff would seem to have been sufficiently punished for the assertion of an unfounded claim to redeem, by his subjection to costs in. that suit, and the difficulty and delay thereby inevitably caused in the enforcement of what are apparently his just rights in this. Motion and exceptions overruled.