Holmes v. Hunt

• Citation: 122 Mass. 505
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 04 May 1877
• Parties: Edward O. Holmes & another v. William P. Hunt

122 Mass. 505

Edward O. Holmes & another v. William P. Hunt

Supreme Court of Massachusetts

May 4, 1877

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Suffolk. Contract on an account annexed, containing a large number of items, for a rice mill and machinery to be used in connection with it, sold to the defendant, and for labor about the same.

The action, which was brought in this court, was referred to an auditor, "to hear the parties and examine their vouchers and evidence, and to state accounts and make report thereof to the court." The auditor made a report, in which he stated the account, but declined to pass upon the question whether the plaintiffs gave credit to the defendant or to C. S. Hunt & Company, of which firm the defendant was not a member, and whether the defendant was properly chargeable for the account or any part of it. The case was thereupon recommitted to the auditor to find and report whether or not the defendant was indebted to the plaintiff for any of the items stated in the report, and, if so, to what extent. The auditor made a further report that the defendant was indebted to the plaintiffs in a certain sum, being the amount of certain items set forth in the account before stated.

Before the day on which the case was tried, the defendant moved the court to strike out that portion of the auditor's report wherein the auditor passed upon the liability of the defendant, or to recommit the same to the auditor with instructions, or in some other way to order that the auditor's finding upon the question of liability should not be prima facie evidence with the jury, upon the ground that it was not within the province of the auditor, or the power conferred upon him by the order of the court; and that his finding therein, being read to the jury as prima facie evidence, was an infringement upon the defendant's constitutional right to have the question of his liability determined by a jury. Colt, J., ruled otherwise, and the defendant excepted. At the trial, the same judge, in his charge to the jury, gave full instructions as to the effect to be given to the auditor's report as evidence, to which no exception was taken, except as above stated.

It appeared in evidence that certain items of the plaintiffs' account were originally charged to C. S. Hunt & Co., of New Orleans, to whom the machinery was consigned. One of the plaintiffs, in explanation of these entries, testified that his partner had charge of the books and correspondence, and that as soon as he, the witness, learned the machinery had been charged to C. S. Hunt & Co., he told his partner, and gave him directions to alter the same by an entry on the books, by which C. S. Hunt & Co. were credited with the whole amount of the account and the defendant charged with the same amount. This was objected to, and admitted subject to the defendant's exception.

One of the plaintiffs was asked, by their counsel, whether he had any knowledge in reference to C. S. Hunt & Co., or their financial condition. The question was objected to by the defendant, and the witness was then asked if he knew C. S. Hunt & Co. at the time he furnished this machinery; to which the witness answered "No." This last question was admitted subject to the defendant's exception, and the plaintiffs were then asked if they knew the defendant at that time. Subsequently, the defendant called a witness to show what was the financial reputation and standing of C. S. Hunt & Co. in Boston, before and at the time of making the charges; and, the question being excluded, excepted, upon the ground that it was competent, and that, if not so before, it was made admissible by the previous question put to the plaintiffs by their counsel.

The defendant had, before the trial, called for the plaintiffs' books of account and letter books, and the same had been produced and examined by the defendant; and, in order to show that the plaintiffs looked to C. S. Hunt & Co., caused to be read, by one of the plaintiffs, from the plaintiffs' letter book, a letterpress copy of a letter of July 3, 1871, signed by the plaintiffs, to one Benjamin Allen as follows: "Mr. Benj. Allen New Orleans. Dear Sir: We wrote you on Saturday with sketch. But we forgot to ask, what we want to know, whether they intend to start the mill up as soon as it is finished. This is important to us, for we want to get some money out of them, and we can go to work in a little different way, if they are not going to start right up. Let us know at once about this." One of the plaintiffs was asked by his counsel to explain what arrangements were referred to in this letter to Allen which were to depend upon the time when the mill was to be started in New Orleans, and allowed to testify, subject to the defendant's objection, as follows: "We were short of money, and wanted to get some money from the defendant on this job. If they were going to start the mill right up, we thought to ask him for some payment on account; but if not, we proposed to ask him for the whole; because if they were going to start right up, they would have a chance to see what the mill was, and, from courtesy, we thought we would allow them to do that before we asked for a settlement."

It was contended by the plaintiffs' counsel in opening the case, as tending to show the defendant to be the real contractor, that the defendant had insured the goods sent to New Orleans. The defendant was asked by the counsel "if he, the defendant, insured the goods on his own account." This being objected to, and the defendant's counsel offering to show that he insured "for whom it might concern," the court ruled that this could only be shown by the policies of insurance, but allowed the defendant to state that he charged the amount paid by him for insurance to C. S. Hunt & Co., who paid him for it.

The mill being constructed for a certain purpose, namely, to be set up in New Orleans, for the purpose of cleaning rice there, the defendant contended that there was an implied warranty that it was reasonably fit for this purpose. The plaintiffs offered no evidence as to the quality of the mill or its fitness, except the auditor's report. In reply, the defendant called one Chick, a miller, to testify to defects in the mill and its performance, and the manner in which it crushed the rice in the fall of 1871, when first set up. After the defendant's case was closed, the plaintiffs called a witness in rebuttal, and were allowed to show by him that the mill and machinery were properly constructed for the purpose of cleaning rice; that the Louisiana rice for the years 1870 and 1871, which this mill was used to clean, was soft and of a different quality from eastern or Carolina rice, and more easily crushed. The defendant objected that there was an implied warranty that the mill was fit for cleaning rice, and that it was for the plaintiffs to show, as a part of their case, compliance with that warranty on their part. The judge said: "I think it is competent and proper. How could the plaintiffs know that you were going to put in or produce evidence of the imperfection of the machine?" The defendant's counsel then said: "You remember that we asked nothing about Louisiana rice." The judge replied: "It is a part of your case to show that this work was not sufficiently done to justify them in claiming the price. You put in evidence to show that it was not well done, that it pounded the rice, and so on." The defendant's counsel then asked: "Does your honor say that it was a part of my case to show that it was not fitly done?" and the judge replied, "I do." The defendant excepted. The witness was then examined on the character of the mill. There was no discussion, other than as above appears, as to the question of the burden of proof; and the matter was not further alluded so during the trial.

The jury returned a verdict for the plaintiffs; and the defendant alleged exceptions.

Exceptions overruled.

R. D. Smith, for the defendant. 1. The Gen. Sts. c. 121, § 46, do not authorize the court to require an auditor to pass upon the question of the defendant's liability to the plaintiff. The auditor could and did state the account in his first report, and thereby performed his office, and the order of recommittal was unwarranted. Jones v. Stevens. 5 Met. 373, 377. Bartlett v. Trefethen, 14 N.H. 427.

If the statute authorizes such a finding, as the auditor finally made in this case, to be read to the jury as prima facie evidence, it is unconstitutional, as violating article 15 of the Declaration of Rights, which provides that "in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury, and this method of procedure shall be held sacred."

An auditor's report, if prima facie evidence, is of course conclusive, unless controlled. Shaw, C. J., in Allen v. Hawks, 11 Pick. 359, 361. It is a mere opinion, unsupported by oath. Tyson v. Commissioners, 28 Md. 510. And the whole issue, which it was the right of the defendant to require the plaintiff to establish before the jury, is prejudged by an officer of the court.

It does not appear that this question of constitutionality has been argued and considered by this court. In Locke v Bennett, 7 Cush. 445, Mr. Justice Fletcher discusses the powers of auditors very fully, but not the constitutionality of the statute. From his opinion may be gathered the early practice of courts in England, in actions of account, in which the question of liability of the defendant to account was first determined, and the case then sent to an auditor, every issue of fact being taken from...