Commonwealth vs. Inhabitants of Cambridge, 4 Met. 35

Wilde, J. This case comes before us again, on a motion by the Attorney General for a new trial, for sundry rulings of the judge presiding at the trial, alleged to be erroneous, and because the verdict is against the weight of the evidence. After the decision of several questions of law, at a former term, (20 Pick. 267) an auditor was appointed by the court to hear the parties, and examine their vouchers and evidence, and to state the accounts, and make report thereof to the court.

The auditor made his report, which was recommitted, on the motion of the Attorney General, and a supplemental report was made, and both reports were offered in evidence at the trial by the defendants’ counsel. The Attorney General objected to the admission of the evidence, on the ground that the court had no power by law t«' appoint an auditor, inasmuch as the only matter of account was a stated and settled account kept by the defendants in the books of their agents, and no longer open to audit or change. This objection is founded on a mistaken principle.

It is very clear that the settlement of accounts by the defendants with their agents, especially under the circumstances relating thereto, is not binding upon them in this suit. In that settlement, it was of little importance to the defendants to estimate accurately the price of labor, or the earnings of the paupers, which in this suit is of great importance. These accounts, however, and the votes of the town accepting the reports of a committee of the town who examined the accounts, and of the overseers of the poor, were competent evidence against the defendants, but were not conclusive.

And they were so admitted by the auditor. The defendants, however, were allowed to prove that the accounts were inaccurate, and especially as to the earnings of the paupers; and this evidence we consider competent. The ad mission of a party can never amount to an estoppel, unless the party to whom the admission was made was induced thereby to change his condition, which would be prejudicial to him, if the party making the admission were not bound thereby, and estopped to contradict or disprove it. Heane v. Rogers, 9 Barn & Cres. 586.

The Attorney General further objected, that if the report was admissible at all, yet that the value of the paupers’ labor had been settled by the defendants, and could not be the subject of revision by the auditor. This objection depends on the same ground as the other objection does, and cannot be sustained. Nor can we admit that the auditor has exceeded his authority, as the Attorney General contends, by estimating the value of the paupers’ labor. The auditor was directed to state the accounts, and report the same to the court. To do this, it was necessary to ascertain the value of the paupers’ labor.

The auditor’s judgment is not conclusive ; it may be impeached by the evidence reported, and by other evidence, and it may be controlled by the jury. But his judgment is entitled to great respect, for he appears to have examined the subject most thoroughly. The witnesses best acquainted with the ability of the paupers to labor, and the labor they actually performed, were examined, and every other source of information was resorted to, which could be expected to aid him in forming a correct judgment.

This evidence, and the reasons of his opinion, are reported ; so that the jury had ample means to correct the auditor’s judgment. It was said by the Attorney General, that the evidence should not have been reported, or if any part were reported, the whole should have been. We un derstand that the parties agreed, that the evidence should be reported. And the only objection on this point, made at the trial, was to that part of the reports in which the auditor had recited the substance and purport of the testimony of the witnesses. The report of the evidence appears to be very voluminous, and sufficiently full.

Whether any thing material has been omitted, we cannot determine ; but if there had been, the Attorney General should have applied to the auditor to supply the omission before the trial. But we have no means of knowing whether the objection applies to that part of the evidence relating to the earnings of the paupers. The evidence in that relation seems to be reported minutely, and very much at large.

Another objection is founded on a claim, in behalf of the Commonwealth, not only to the earnings of the paupers, as a diminution of the charge of supporting them, but to the profits which the town have derived therefrom by their labor in the defendants’ alms-house establishment, or otherwise. To this objection two answers have been given, which we deem satisfactory. The first is, that the town has derived no profit from their alms-house establishment, but have sustained heavy losses thereby. The auditor’s report shows that it was an unprofitable concern from the beginning.

The loss was small in 1831 ; but it does not appear that there was any profit. On this question, the auditor has made a most thorough examination of the accounts, and of all material facts, and his report of tire result of his examination is fully sustained by the evidence. This was a question of fact for the jury to decide ; and if the case depended on this question, the jury were certainly warranted, by the weight of the evidence, to return a verdict for the defendants.

But the case does not depend upon the determination of this question ; for, in our judgment, the second answer to the objec tion is conclusive, and the other question is of no importance. The defendants’ counsel contend, that if they had derived any profit from the labor of the paupers in the alms-house establishment, they were not bound to credit any share thereof in their account with the Commonwealth; that they were to credit the value of the labor only. And we are all clearly of this opinion. This establishment was an affair of the town’s, in which the Commonwealth had no interest.

If it were a joint concern of the Commonwealth and the town, they of course must share in profit and loss. But there is no pretence for charging- the Commonwealth with any share of the loss; and they have no right, therefore, to claim any share. of the profits. They are only entitled to the earnings of the paupers. The laborers whom the town hired to oversee the paupers, and assist them in their work, might as well claim a share of the profits, if there were any, as the Commonwealth.

The view we have thus taken of the case disposes of several other exceptions relating to the expenses and supposed profits of the alms-house establishment; and .the other exceptions and reasons, assigned in support of the motion for a new trial, de* pend on questions of fact. The Attorney General, for instance, moved the court to instruct the jury, that certain persons who labored on the road were not chargeable as paupers, and that the plaintiffs were entitled to recover back all the money charged in the defendants’ account for the support of those men.

The court very properly declined so to instruct the jury, for it was a question of fact for them to decide upon the evidence. As to the motion to set aside the verdict, because it is against the weight of the evidence, we are of opinion, after a careful examination of it, that the verdict is sustained by the evidence, most satisfactorily. As before remarked, the auditor seems to have examined the case very thoroughly and with great ability, and we see nothing in the evidence to impeach, but much to sustain, his report.

In regard to the settlement of the accounts between the over seers of the poor and the town, on which the Attorney General seems to rely with some confidence, we do not think, considering the circumstances under which those accounts were made out, and especially as to the estimate of pauper labor, that they • are entitled to much consideration. It was of no importance to the town to reduce the price of pauper labor ; and it is manifest that the charge was extravagant.

The committee of the town were of opinion, that it ought to be reduced from 50 cents to 30; and one of the committee was of opinion, that 25 cents (the amount allowed by the auditor) was enough. Then, taking into consideration the other evidence reported by the auditor, we cannot say that, if his estimate had been somewhat lower, it would be against the weight of the evidence. Judgment on the verdict. After this opinion was pronounced, the defendants’ counsel moved for costs, and cited the Rev. Sts. c. 121, § 22.

The Attorney General suggested, that, as this action was commenced oefore those statutes went into operation, no costs were recoverable. But the court held otherwise, and directed that costs should be taxed for the defendants in the same manner as if the suit had been instituted by a citizen.