| Vt. | Feb 15, 1843
The opinion of the court was delivered by
The only subject of dispute in this action is, whether the county court was correct in rendering judgment for the plaintiff to recover the two charges, one of five dollars as cash delivered the wife of the defendant, and the other of fifty cents for money overpaid on note. If the county court were incorrect in allowing these charges, judgment should have been for the defendant, and this would have carried the cost, which has increased to a large amount.
On reports of auditors, the county court are only to decide questions of law'arising from the report; and it is only their decision on these questions which this court ever reviews or revises. It is the duty of auditors to decide upon all questions of fact arising in the investigation of an account, and to deduce all inferences of fact which may be legitimately drawn from the evidence. They may not report the evidence, merely, and call upon the court to investigate the same, and come to a conclusion as to what facts are proved.
In relation to the charge of five dollars, the auditor has not found and reported that the defendant was indebted, nor has he stated any facts from which the law would raise any such indebtedness. 'He reports that the wife of the defendant had of the plaintiff five dollars; but omits to say on what account. He does not report that it was received to be repaid, or that it was received as payment, or part payment, of the note which defendant’s wife held against plaintiff, and which defendant afterwards refused to have applied. He says the same never came to the custody of the defendant, or that it, in any way, ever came to his use.
As to the agency of the wife, it is sufficiently stated that she acted as agent at times ; — and there are several acts of agency stated, from which the auditor might have found that she received this money for, and on account of, the plaintiff. But he has not so reported ; and, from what is stated', it is uncertain whether the money was given as a gratuity, or whether it was a loan, or w'hether it was in payment of the
With respect to the charge of fifty cents, the facts found by the auditor are very few. The plaintiff, through mistake, overpaid that sum on the note which he gave the defendant, and this mistake was not discovered by either, until after the commencement of this suit, nor previous to the trial before the justice of the peace. It is not found that it was through the mistake of the defendant, or under any uncertainty of the facts, or by miscast, induced in any way by the defendant. The plaintiff had the knowledge of, or the means of knowing, the exact amount due on the note; and if he overpaid it through his own mistake, it cannot be said that he could, imme» diately, and without giving any previous notice to the defendant, have commenced an action therefor.' It partakes so much of the character of a voluntary payment, that we think the plaintiff could not maintain any action therefor, until he had pointed out to the defendant the mistake, and given him notice that he should call on him for the payment of the same. With respect to this charge, as well as the other, sufficient is not reported to show the defendant indebted to the plaintiff. The judgment of the county court is, therefore, reversed, and judgment is to be rendered for the defendant to recover his cost.