Warden v. Johnson

| Vt. | Jul 15, 1839

The opinion of the court was delivered by

Williams C. J.

It is for the court to inquire, whether on the two questions decided by the auditor, giving a balance in favor of Johnson, his decision was correct.

It is to be kept in mind, that the auditor is to decide upon the facts, and his decision thereon is conclusive, and further, that if he has found a fact, and allowed a charge upon improper testimony, the court are not, on this ac-account, to reject the charge, but the subject must again be sent to the same or another auditor, to give the party an opportunity to make proof by proper testimony. We think, however, that the auditor decided right upon the questions. That an action on book may be maintained for money, either paid, advanced or lent, in the common and ordinary course of business, has been so long considered as settled, that it will be useless to inquire, at this day, why it was so. We cannot see any good reason that money should be a better or more proper subject of charge on book, when there are other charges with it, than when it is a single charge.

If the testimony was properly admitted, the charge for the money for which the receipt was given, and which was also entered on the cash account of the Wardens, was a regular charge on book and might be sued for in that form of action.

The next inquiry is, whether the auditor admitted the oath of the party to a fact, to which he was not competent to testify. It appeared, in the course of the examination, that a receipt was given, but unless the receipt was of such a character as to give a right of action thereon, and to merge an implied, in a special contract, I can see no good reason why it should be required to be produced at all. It is frequently the case, when goods are delivered, or services performed, which are intended to be a subject of account, and are charged and credited on book, that a receipt is given, and I do not know, that the receipt should be considered as any better evidence than the book.

Such a receipt may truly be said to' be nothing more than a mere acknowledgment, and is not usually preserved as evidence of a contract. But, whether this is so or not, the auditor had other evidence than the oath oí the party of the loss, that is, a search was made among the defendant’s papers, the place where it would be most likely to be found.

As the evidence of the existence of the receipt was only derived from the acknowledgment of the party, who said, at the same time, that it was lost, the party might swear to the existence and loss ■ of the receipt, as where an original book was lost, and recover the amount. From the nature of the receipt, thus proved to have existed and to have been lost, if any further evidence was required in relation to it, the parties were competent to testify, and it must have operated injuriously to both parties, unless either were not only permitted, but compelled to testify, if required. It is to be observed that the plaintiff, who insists upon the objection, had no other evidence that a receipt was given, except what was obtained from the cross examination of the defendant, and from the entry in his cash account, and as that evidence had no tendency to show that the receipt contained any thing but .an acknowledgment, and does not show that it was not a proper subject of charge, the parties were witnesses, and were competent to testify to any material fact in relation to it. On an examination , of the whole case, we think the sum found by the auditor should have been allowed, and the report accepted.

The judgment of the county court must, therefore, be reversed and judgment rendered in the declaration on book for the defendant to recover the sum found by the auditor and the defendant may then plead the same in offset to the notes on which the plaintiff has brought his action.