Caleb Jones vs. Nathaniel Stevens, 5 Met. 373

Hubbard, J. This was an action of assumpsit for work and labor, and for materials furnished. One ground of defence relied on was, that the labor was done, if at all, jointly by one Howarth and the plaintiff, as partners ; and that the materials were found by them, and consequently that the action could not be maintained by the plaintiff alone. This was denied by the plaintiff. The case went to an auditor, either by consent, or by order of court.

From an examination of his. report, which makes part of the case, and from the statement of counsel, it appears that both parties went into evidence before him, whether the work and materials charged were furnished by the plaintiff, or by him and Howarth. And upon this evidence the auditor formed an opinion, as appears in his report. When the case came on for trial, the defendant objected to the plaintiff’s reading the report in evidence, on the ground that the auditor had passed on the question of partnership, and contended that it should either be rejected or recommitted.

But the judge permitted the report to go to the jury, and instructed them, that while it was proper for them to consider the facts stated in those paragraphs of the report, yet, as it was not competent for the auditor to pass upon the question of partnership, they should exclude from their consideration any parts of the report which had reference to that subject.

The language of the instructions, as reported, is not very distinct ; but we understand by it, that the judge considered that the facts, as stated in that part of the report, so far made a part of it, that they might be read to the jury ; but that the opinion formed by the auditor upon those facts, in relation to the partnership, should be excluded from their consideration.

We are of opinion, that it is proper for the presiding judge, on hearing objections to the report of an auditor, to accept or reject it, or to recommit it; or, as in the case of a deposition, he may reject parts of the report, which he deems improper to go to the jury, and receive the residue ; and that he is not obliged, at all events, to reject or recommit it, for partial errors. It is a matter which lies within his judgment, in the first instance.

And in the case at bar, on looking at the facts stated in the report, and bearing in mind, that both parties went into evidence before the auditor, on the subject of the partnership, we see no sufficient reason for setting aside the verdict for the reason that the judge did not recommit or reject the report. And we think the course adopted by him, in rejecting the conclusions drawn by the auditor, while he retained the facts upon which the conclusions were formed, was within the exercise of his discretion, and that his decision in this respect was not erroneous.

Those matters of defence which go in bar of the action, or which are not matters of account, are not to be passed upon by an auditor ; and, if done without consent of parties, should be stricken from the report, or the report itself should be recommitted or rejected.

But where the evidence offered bears directly or incidentally on the matters of account, there the auditor is called upon to examine it, and may state it, if he thinks it necessary to render his report intelligible ; though he is not required, as a matter of course, to detail the testimony at length ; it being kept in mind, that the report is but prima facie evidence, and may be contradicted and rebutted by other testimony, or by the reexamination of the same witnesses or documents.

In the present case, it would seem to us, that the auditor was not necessarily required to form a definite judgment on the subject of the partnership, and to incorporate the same into his report, as he could state the accounts in the alternative, according as they were affected by the fact of partnership or no partnership. But the evidence having been offered by both parties, and of course pressed by the defendant whose endeavor was to establish the partnership, we see no sufficient ground for rejecting his report, for the reason that he presented the facts brought before him, with his conclusions.

It was also objected, by the defendant, to the charge of the judge, that he instructed the jury, that the report of the auditor, in respect to the value of the plaintiff’s services for labor performed for the defendant, was prima, facie evidence, and that the burden of proof was on the defendant, if he would impeach it; the defendant maintaining that the burden of proof was not shifted by reason of the report, but that the condition of the parties, as to the proof of the case, remained the same as if no report of an auditor had constituted a part of it. But we cannot agree to this position.

If was incumbent on the auditor, in stating the accounts, which consisted, for a considerable part, in services performed, to ascertain the value of those services ; otherwise he could not introduce the services as items of account. And the report being made evidence by the statute, it necessarily shifted the burden of proof; for being prima, facie evidence, it becomes conclusive where it is not contradicted or controlled. And in Allen v.

Hawks, 11 Pick. 362, the court say, “ another useful and very important effect of a report is, to change the burden of proof.” The general rules of practice, on the subject of auditors’ reports, are stated with great distinctness, in the above case, and in those of Lazarus v. Commonwealth Ins. Co. 19 Pick. 97, and Whitwell v.

Willard, 1 Met. 216 ; and it is unnecessary here to enlarge upon them farther. , In regard to the objection raised to the 15th paragraph of the report, we think the appraisement, made by Howarth, Buckley, and others, was not in the nature of an award binding on the parties, but was merely evidence tending to show the cost of manufacturing the goods mentioned ; and that it might be varied and controlled by other testimony offered by either of the parties ; and that the auditor did not, in relation to it, admit incom petent evidence.

The defendant also offered in evidence certain letters written by John Howarth to the defendant, which were rejected. As the plaintiff was not a party to the correspondence, and as no evidence was offered to prove that the letters had been communicated to him, as they were received, we cannot doubt that they were properly excluded from the case. On the view which we have taken of this report, and the accounts as therein stated, we see no such errors in the rulings and instructions of the presiding judge, as make it necessary to disturb the judgment rendered by the court of common pleas. Exceptions overruled.