Robert Hughes v. William Christy and others, 26 Tex. 230

Moore, J. The court did not err in refusing to permit the plaintiff to prove by parol that suits had been brought by him for Jacobs and Christy, against the adverse claimants of the eleven leagues of land granted to Varela. Nor does he now insist upon this as a ground for the reversal of the judgment; but contends that the defendants having consented to the appointment by the court of .an auditor to audit the accounts between the parties, thereby admitted the plaintiff’s right to recover to some extent.

It is very evident that it was not the intention of the defendants, when they consented to the appointment of an auditor, to admit the plaintiff’s cause of action, for in the same entry by which the auditor was appointed, the court set aside judgment by default against the defendants, on their motion alleging, among other reasons for so doing, a meritorious defence to the plaintiff’s cause of action. Nor could the plaintiff have so understood it.

On the trial he not only endeavored to establish his alleged cause of action, but took a bill of exceptions to the ruling of the court refusing to permit him to do so by parol testimony. We think, therefore, it might well be questioned, if this was ordinarily the effect of consenting to the appointment of an auditor, whether the plaintiff could, under the circumstances, be permitted to avail himself of it, especially when he seeks to do so for the first time in this court. But we cannot admit that the mere consent to the appointment of an auditor, as authorized by our statute, (O. & W.

Dig., art. 565,) has the effect contended for by the plaintiff. .A reference of matters of account to an auditor, is authorized by the statute from the consideration that they may be of so complex and intricate a character as to be unfit subjects of examination in court.

Shall a party, then, who, knowing that such matters of account are involved in the case, as are from their multiplicity or complexity unfit for an investigation before a jury or by the court, consents to the appointment of an auditor, from a willingness to facilitate the trial of the cause, or from a greater confidence in the correctness of the account by an auditor, who is always selected by the court on account of his superior competency for this purpose, be thereby estopped from establishing a defence which, while he admits in every particular the correctness of the statement of the account, would discharge him from all liability for it?

Or has he, by so doing, relieved the plaintiff from the necessity of establishing his cause of action, when the matters reported by the auditor are not sufficient to do so? We can not think such should be its effect.

It is true in numerous cases in common law courts in actions of account it has been held that the defendant can not, after the appointment of an auditor, deny his liability to account; but this is owing to the fact that there has been, in accordance with the practice in that action, in those courts, a judgment rendered against him quod computet, and of course this estops him from a subsequent denial of Ms liability to account. And in the case of King v. Lacey, 8 Conn. Rep., 500, relied upon by the plaintiff, it was held that the defendant by consenting to the appointment of auditors waived his demurrer.

But this was upon the ground, that, by asking for the appointment of auditors, he had asked for a trial, upon the facts, by an appropriate tribunal for their investigation, and he thereby waived his demurrer, precisely as he would under the common law practice, in force in that State, if after demurring he had filed a plea in bar. For the court say, “If he had entered Ms plea and put himself upon the jury for trial, which is nothing more than asking in a legal form that a jury may try, examine and adjust the account, it would be a waiver of his demurrer.

Now, when he comes and asks the court to liquidate the account in another way, by the appointment of auditors, he must, also, be considered as waiving the demurrer.” But as, in our courts, a plea in bar does not waive a demurrer, the reason of the rule, as shown by this case, would lead to the conclusion, that a consent to the appointment of auditors with us, shoúld not be held to do so; much less could it be said to be an admission of the plaintiff’s cause of action.

But if the plaintiff were correct in the construction he seeks to place upon the consent to the appointment of the auditor, it would place him in no better attitude than he otherwise occupies. The most that he could possibly claim from it, is, that the defendants thereby admitted his cause of action as stated in the petition, and their liability to account. But the amount for which they should account must still be shown by the plaintiff, either by the auditor’s report or otherwise, before he could ask for a judgment. This he failed to do.

The report shows, it is true, a series of transactions between the defendants and certain parties therein named, but it cannot be ascertained from it, or other evidence in the case, that the land secured and the money received by the defendants as shown by the report, or any part thereof, was not obtained by them by compromises with parties against whom suits were not brought by the plaintiff, and in which, consequently, by the terms of the contract, he had no interest.

It would perhaps be more appropriate that a demurrer to evidence should be in writing, but we know of no rule of practice in our courts absolutely requiring it, and regard it, therefore, as a matter within the discretion of the District Judge, whether he will act upon it in parol or not. If the plaintiff had desired it at the time, the defendants would no doubt have reduced it to writing, or the court would have required it to have been done. Hot having excepted to it upon that ground at the time of trial, he can not now do so.

The right of a defendant to demur to the plaintiff’s evidence, is said by this court, in the case of Booth v. Cotton, 13 Tex. R., 359, to be scarcely an open question. A correct practice requires, as is also said by Chief Justice Hemphill in that case, that there should be a joinder in the demurrer by the plaintiff. But it was. his duty to have joined in it, and if he had failed to do so, the court would have required it of him. The entry is inartificially drawn, and does not show that the plaintiff joined in the demurréf.

His bill of exceptions, however, to the ruling of the court on the demurrer, expressly states that he did; and such doubtless was the fact. But if it were otherwise, under the authority of the ease just referred to, it would not entitle the plaintiff to a reversal. The judgment is affirmed. Judgment affirmed.