Ryan v. Rand

26 N.H. 12 | Superior Court of New Hampshire | 1852

Eastman, J.

The paper which was offered in evidence, signed by Rand, appears to be of that class which may be explained or contradicted by parol evidence. It is a mere certificate or statement of the situation of the accounts between the parties at the time of its date, and stands upon the same footing as receipts. It contains within itself the evidence of a looking over, an examination of the accounts between them, and states the result, and that result may be explained.

That receipts are not conclusive evidence of the true state of dealings between parties is well settled. They are prima facie evidence of what they contain, but may be contradicted, varied or explained by oral testimony. Tucker v. Maxwell, 11 Mass. Rep. 143; Johnson v. Weed, 9 Johns. Rep. 310; Maze v. Miller, 1 Wash. C. C. Rep. 328; Putnam v. Lewis, 8 Johns. Rep. 389; Rollins v. Dyer, 4 Shepl. Rep. 475; Burnap v. Partridge, 3 Vt. Rep. 144; House v. Low, 2 Johns. Rep. 378; Fuller v. Crittenden, 9 Conn. Rep. 406.

A receipt in full of all demands was allowed to be contradicted, and shown by parol to have been intended for an unliquidated claim, leaving a balance struck still due. Ensign v. Webster, 1 Johns. 145. So parol evidence was received to show to what demand a receipt was applicable. Brooks v. White, 2 Met. Rep. 283.

A settlement between parties is prima facie to be taken as a settlement of all demands, but is not conclusive, and is no bar to a recovery for matters not included in the settlement, though existing at the time. Nichols v. Scott, 12 Vt. Rep. 47.

This paper is not a contract for the performance of any act, or the payment of any sum of money. It contains no promise to pay, but is simply evidence of a settlement of accounts, and, we think, clearly falls within the principles of the authorities cited.

The case is a proper one for an auditor. What particular evidence the auditor shall receive, or the precise principles that shall govern him, as seems to have been contemplated should be indicated to the auditor, cannot now be specified. After a hearing before the auditor, and a report made by him, the court will judge whether the hearing has ' been legal or not, and will affirm, recommit or reject the report, as justice shall require.

According to the provisions of the transfer, the nonsuit must be set aside, and the case will then be committed to an auditor, or tried by the common pleas.