43 Vt. 608 | Vt. | 1871
The opinion of the court was delivered by
Upon the trial of this case before the auditor the only questions to be determined were, whether the plaintiff was entitled to recover anything or not upon a single item of book charge, and if entitled to recover for that item, how much was due upon it.
These questions were to be tried before the auditor in this action in the same way, and the same rules as to the right of recovery were to be applied, as if the same questions had been on trial in an action of assumpsit before a court and jury, or before a referee. The plaintiff having brought this action of book account, and obtained a judgment to account, and the appointment of an auditor, and having presented this item to the auditor for adjustment and allowance, could not justly object to having all questions connected with thé item he presented adjusted and settled upon the hearing by the auditor. He might have brought an action of assumpsit and had the same questions tried by jury, but he selected this form of action; his claim is a proper subject of adjustment in it, and all questions pertinent to its adjustment were necessarily to be determined according to the course of proceedings in-it. There was a time when, in an action for goods sold at an agreed price, the defendant was not permitted to show fraud or deceit or a breach of warranty by the plaintiff in the sale, in reduction of the damages for non-payment of the price, but was put to a cross action for a remedy for the fraud, deceit, or breach. But that doctrine was long ago repudiated in England, and perhaps never had any settled foundation in the law of this state, but if it ever was the law of this state it is well settled that it is not so now. Allen v. Hooker, 25 Vt., 138; Keyes v. Western Vt. Slate Co., 34 Vt., 81.
In this action therefore the auditor had before him, properly and necessarily to be determined, the whole contract of sale of the
Judgment affirmed.