Lincoln v. Virginia Portland Cement Co.
| Decision Date | 05 May 1919 |
| Docket Number | 3226. |
| Citation | 258 F. 505 |
| Parties | LINCOLN v. VIRGINIA PORTLAND CEMENT CO. |
| Court | U.S. District Court — District of Columbia |
Submitted April 2, 1919.
Appeal from the Supreme Court of the District of Columbia.
Lucas P. Loving, Wharton E. Lester, and L. L. Hamner, all of Washington, D.C., for appellant.
H Ralph Burton, Walter C. Clephane, and J. Wilmer Latimer, all of Washington, D.C., for appellee.
The Virginia Portland Cement Company, referred to hereafter as the Cement Company, sued S. Dana Lincoln, trading as the National Mortar Company, to recover from him over $8,000, a balance alleged to be due for about 1,400 shipments of cement, which were made on different dates running through a period of about five years. The Cement Company recovered, and we are asked by Lincoln to reverse the judgment against him.
By consent of the parties the case was referred to Louis A Dent, as auditor of the court, under chapter 4 of the Code 'to audit and state the account and the dealings between the plaintiff and the defendant and to report the same with his conclusions' to the court. While the case was in his hands he tendered his resignation as auditor, to take effect June 30, 1915. Before this date he had completed the taking of testimony but had not made his report. The testimony covered about 1,100 pages, and in addition thereto voluminous documents had been submitted to him. In these circumstances the Cement Company moved that the case upon the expiration of the auditor's term be referred to Mr. Dent as special auditor, to the end that he might complete his work under the original reference. This was opposed by Lincoln for various reasons set forth in affidavits. Among other things it was charged that the auditor was violently prejudiced against Lincoln. There were counter affidavits. In one the auditor denied any prejudice, and asserted that after the controversy had arisen one of counsel for Lincoln stated to him that he 'was satisfied that the auditor was not imbued with any prejudice toward his client and would give him an unbiased and impartial finding. ' This statement in effect was admitted by the counsel referred to, in an affidavit filed two days later. Another affidavit alleges that Lincoln's resentment was due to the fact that the auditor's rulings during the hearing were adverse to his conception of what he was entitled to. The court overruled the opposition and sustained the motion of the Cement Company.
Shortly afterwards Mr. Dent filed his report, which was in favor of the Cement Company. In due time Lincoln presented exceptions to the report, which were overruled. He thereupon asked leave to file amended exceptions, which was granted. The amended exceptions were overruled. A second application for leave to amend was denied, and judgment was then entered on the report.
Whether or not the special auditor was unfit to complete the report because of prejudice presented a question of fact, which was resolved by the court against Lincoln. We perceive no error in this. The matter addressed itself to the sound discretion of the court. As in the case of proposed jurors whose competency is challenged, the court's ruling should not be disturbed unless there was an abuse of discretion (Miller v. United States, 41 App.D.C. 52, 54; Paolucci v. United States, 30 App.D.C. 217, 12 Ann.Cas. 920; Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244), and we are clear that there was none here.
It was not only within the power of the court to authorize Mr. Dent to complete the work which had been assigned to him as auditor, but it would have been a mistake not to have done so under the circumstances. He had heard all the testimony, had listened to the contentions of counsel with respect to it, and was therefore peculiarly equipped to perform the duty involved. The Code (section 254, c. 4) authorizes the court 'at any stage of the cause' to refer a law case grounded on an account to the regular auditor or to a special one, in its discretion. By the order assigning the case to Mr. Dent as special auditor the previous one committing it to him as auditor was in effect, though not formally, modified.
Nor do we believe there was error in refusing to permit a second amendment of the exceptions. Lincoln requested leave to amend nine of them. This was granted, with the direction that the amendments must 'point out specifically and precisely the grounds of such exceptions. ' They did not comply with this direction, and were rejected by the court. Lincoln then requested permission to further amend, but this was denied him. In the record there is nothing to indicate in what respect he desired to change his exceptions, and in the absence of a showing we cannot say whether the proposed change, if made, would be an improvement. If it would not, he was not prejudiced by the refusal. Besides, the matter of granting amendments is ordinarily in the sound discretion of the court, and where, as here, there is no abuse of that discretion, its rulings will be upheld. Meyers v. Davis, 13 App.D.C. 361, 364; German Evangelical Society v. Prospect Hill Cemetery, 2 App.D.C. 310, 315.
We now come to a more serious question. The Code (section 254, c. 4) provides that the exceptions 'shall point out particularly the item or items' in the report excepted to and state the ground of the exceptions, and that the report shall be supported by an affidavit of the party excepting that the allegations of fact set forth in the exceptions are true to the best of his knowledge and belief. And section 255 thereof provides that when the exceptions thus supported raise an issue of fact it must be submitted to a jury for its determination. Do the exceptions finally passed upon here raise a question of fact? If so, the court erred in not submitting it to a jury.
Five of the exceptions relate to the allowance of interest. The auditor found that the contract between the parties provided for the payment of interest on each shipment after 60 days from the date of its delivery, but he did not follow the contract as to the greater part of the amount involved because, as stated by him, of 'the relaxation by plaintiff in his demand for strict compliance with the contract in this respect. ' He figured interest on the amount which he found due on August 28, 1912, the date that a demand for payment...
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...to form so as to more clearly point out the grounds of exception (see Jones v. Lamar C. C. 39 F. 585, 587; Lincoln v. Virginia Portland Cement Co., 49 App. D. C. 33, 258 F. 505, 507); but to permit additional exceptions to be filed after the 20-day period has expired is to our minds a clear......
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...judgment should be reversed and the case remanded to the District Court for further proceedings. 1 See Lincoln v. Virginia Portland Cement Co., 1919, 49 App.D.C. 33, 37, 258 F. 505, 509. 2 Toland v. Sprague, 1838, 12 Pet. 300, 9 L.Ed. 1093; Riley v. Mattingly, 1914, 42 App.D.C. 290; Burnham......
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