Morgan v. Morse
79 Mass. 150
Mass.
1859
Check Treatment
Bigelow, J.

The cases heretofore decided by this court, in regard to the effect to be given to auditors’ reports as evidence, are Allen v. Hawks, 11 Pick. 359; Lazarus v. Commonwealth Ins. Co. 19 Pick. 81; Jones v. Stevens, 5 Met. 373.; Taunton Ins. Co. v. Richmond, 8 Met. 434; Barnard v. Stevens, 11 Met. 297, and Locke v. Bennett, 7 Cush. 452. In all these cases it is held that the report of an auditor upon any matter properly submitted to him, is prima facie evidence of the facts found by him. In two of them, Allen v. Hawks and Jones v. Stevens, it is said to have the effect of changing the burden of proof. But it is quite obvious, on an examination of those cases, that it was not intended to hold, that the burden of proving the issue, or of establishing a proposition of fact essential to the maintenance of the case of a party in whose favor the auditor had found, was thereby shifted. The phrase “ burden of proof,” was there used, not in its technical sense, to indicate that a new and distinct proposition or issue of fact was to be established by the party *153against whom the report of the auditor had been offered in evidence, but only as signifying that thereby a prima facie case was made out, and that it was incumbent on the other party to offer evidence to rebut and control it, or else it would be conclusive. This mode of using the phrase, though somewhat loose and inaccurate, is quite common, and where not improperly applied to a case, so as to confuse or mislead the jury, cannot be held to be a misdirection. Powers v. Russell, 13 Pick. 76. Delano v. Bartlett, 6 Cush. 368. In this sense it was manifestly used in the present case. The attention of the court was not called to the distinction between that evidence which was sufficient to impeach and overcome a prima facie case, and that which was necessary to sustain the issue on the part of the plaintiff. No instruction was asked by the defendant upon this subject. 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. But we see no reason to believe that the instruction given was not properly understood, or that the defendant was in any way aggrieved thereby.

The evidence of the contract executed by the defendant was competent as an admission by him of the kind and quality of brick, designated as jobbing and hard brick, which the plaintiff had agreed to furnish him. And this evidence, as well as the other testimony offered by the plaintiff, was properly admitted, after the defendant had introduced his proof, for the purpose of impeaching and overruling the report of the auditor. Its admission at that stage of the trial was entirely within the discretion of the court. That discretion would have been wisely exercised in this case, according to the well settled practice in this commonwealth ; and although the evidence was admitted as a matter of right, we cannot see that the defendant was thereb' prejudiced. Exceptions overruled.