Gleason v. Vermont Central Railroad , 25 Vt. 37 ( 1852 )

The opinion of the court was delivered by

Isham, J.

The principal questions arising upon this report, were decided at the last term of this court. The case was then recommitted to the auditor, to report more specifically, the facts in relation to the indebtedness of the plaintifil, on their subscriptions for stock; and also in relation to the contract or understanding of the parties, in the a]3plication of that indebtedness, on this claim of the plaintiffs. The auditor, has reported the sum of $1,730,68, as the balance due the plaintiffs, after disallowing the claim of $800,00, as charged in the defendants’ account; and upon that balance, the county court have rendered their judgment. The only question, now arising on this report, is upon the allowance of that claim of $800,00 on the subscription for stock, in payment, or part satisfaction, of the claim due the plaintiffs.

It is evident, that as a distinct and independent item of acount, or charge, it could not have been allowed by the auditor, for the claim was not due from the plaintiffs jointly. The auditor has found, that one half of that sum was due from Mr. Gleason, as a separate and individual debt; and that the remainder of the claim, was in the same manner due from Mr. Whipple. There is, therefore, an entire want of that mutuality, that renders this a proper claim, for such application. It was also properly disallowed on the ground, that it is not a proper item of book charge, to be adjudicated in this form of action; for, whether the account is presented by the plaintiff or defendant, no item or claim can be the subject of adjudication, as an independent charge, but such as is properly chargeable oil book; and on which, an action in this form can be sustained. Neither could the charge have been allowed, as an advance payment on the contract, for the delivery of railroad ties. The application could probably have been made in that way, if an agreement had been made to that effect by the parties; but the auditor has found, as a fact, that no such contract or agreement was made by them; and this finding must be considered as conclusive on this subject.

It is insisted, however, that the auditor should have allowed the charge, and have applied the same in part payment, or satisfaction, of the plaintiffs’ account, if there was an understanding, or mutual expectation that it was -to be so applied, in a subsequent adjustment of their claims; and if, on the strength of that understanding, the parties have continued their mutual dealings, there can be no doubt, that such an application should be made, where claims have arisen under such an understanding; for this would be equivalent to an express promise, and would equally create a legal, and binding obligation; and though the «tern may not be a proper charge on book, yet, it was properly remarked by the court, in the case of Gunnison v. Bancroft, 11 Vt. 493, “that if a party charge any “ matter upon book, and present it before the auditor, and claim to “ recover for it, he cannot object to any other matter being brought “ into the account, upon which it was agreed that the charge was to apply.” To justify the application, however, that understanding or expectation, must be affirmatively found to exist, and should be stated, in the report of the auditor. It is not for this court to find that fact, from a statement of the evidence, or as a matter of inference. This is exclusively within the province of the auditor; and the facts, in the exact manner in which he has found and stated them in his report, must be conclusive in our investigation of the case.

In looking at the reports of the auditor, we find on this subject, a different phraseology used in the last report, from that, which was used in the first. If the facts are differently found, we must necessarily be governed by the statement as made in the last report, for, the object of its re-commitment was, to ascertain, -with greater certainty and definiteness, the understanding of the parties, in relation to the application of that claim, on the subsequent adjustment of their matters. The auditor has stated, that no contract was made that such' an application should be made; but that the plaintiffs severally promised the defendants, that they would pay for the stock, when the defendants paid for the timber, or ties, delivered under their contract. This is not equivalent to an agreement, that a specific application of that claim, should be made in satisfaction or extinguishment of the plaintiffs’ account, either on a present or future settlement of the same. It is a simple renewal of their several obligations, to pay for the stock which they had taken, according to the terms of their respective contracts, when they were paid for the ties, delivered under their contract. This finding of the auditor, leaves the parties to enforce their respective contracts, in the manner in which they severally stipulated.

The claim was, therefore, properly disallowed, and the judgment must be for the plaintiff, for the largest sum reported by the auditor.