Wyman v. Whicher

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, C.J.
• Citation: Wyman v. Whicher, 179 Mass. 276, 60 N. E. 612 (Mass. 1901)
• Decision Date: 17 June 1901
• Parties: WYMAN v. WHICHER et al.

179 Mass. 276

60 N.E. 612

WYMAN v. WHICHER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1901

COUNSEL

Southard & Parker, for plaintiff.

Brandeis Dunbar & Nutter and Edward F. McClennen, for defendants.

OPINION

HOLMES C.J.

This is an action for services as an expert accountant. At the trial the plaintiff put in an auditor's report in his favor. The defendant Whicher then testified that there was no agreement as to the rate of charge and that the work done was useless. The plaintiff in reply testified that he told Whicher that he charged five dollars an hour and expenses, the fair implication of his testimony being that that was, and was understood to be, his regular price. The plaintiff also explained the services rendered and their value. He had a verdict, and the case is here on exceptions.

The most important exception is to the mode in which the judge dealt with the auditor's report. There is no doubt that some passages of the charge would give a wrong notion of the law. After stating that in the absence of other evidence the auditor's report would determine the rights of the parties, the judge went on that therefore the plaintiff put in the auditor's report and rested, 'and the defendant undertook the burden of showing you that the auditor's report is wrong.' And later, again 'The defendants have to satisfy you that the auditor's report is wrong. Starting with the position that the auditor's report is the guide in coming to a conclusion upon that matter, is your opinion changed by the fact that testimony has been introduced by the defendants and the plaintiff?' Taken by themselves the first passage suggests that the auditor's report shifts the burden of proof, and the second that the auditor's finding for one party raises a presumption of fact in favor of that side even when the only evidence is that of the plaintiff and the defendant, and when their testimony has been heard afresh by the jury.

It is settled, of course, that an auditor's report merely puts on the other party the burden of going forward with evidence to rebut and control it, but does not change the burden of proof. Morgan v. Morse, 13 Gray, 150; Holmes v Hunt, 122 Mass. 505, 514, 23 Am. Rep. 381; Phillips v. Cornell, 133 Mass. 546, 548. We assume further that after evidence has been put in on both sides a jury could not be instructed without error that there was a presumption of fact that the auditor's report was right. It would be for the jury to say what weight they would give to the report. Especially in a case like this, where the auditor's report was merely his judgment on evidence which the jury had heard, they could not be told to attribute any degree of weight to his finding rather than to consider the evidence anew, settling for themselves how far they should be influenced by the report. But we think that the judge was perfectly aware of the law, and that although he used expressions which, taken by themselves, might mislead, he laid down the correct rule in such terms that it may be supposed to have been understood.

The judge stated to the jury that the rule is that 'the auditor's report does not change the burden of proof technically speaking, which is on a party to establish by evidence essential to the maintenance of his case; but while the burden of proof is not shifted by the auditor's report, yet, as it makes out a prima facie case, it is incumbent on the other party to meet and control it, or it will be conclusive against him.' This was sufficiently clear with regard to the burden of proof, and we are of opinion that the jury were instructed rightly upon that point. With more hesitation we have come to the conclusion that the charge may be sustained upon the other point also, as signifying not that there was a presumption of fact in favor of the auditor's report when the whole case had been set at large by evidence, but only that it was for the jury to consider whether the whole matter had been set at large, so that the plaintiff no longer could rest upon his prima facie case. No doubt there was some emphasizing...