Smith v. American Bonding & Trust Co.

12 App. D.C. 192, 1898 U.S. App. LEXIS 3152

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 8, 1898
• Docket: No. 677
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

1. On behalf of the appellee, a motion was filed, which was renewed at the final hearing before us, for the dismissal of the appeal, on the ground that the order appealed from was not a final order or decree from which an appeal could properly be prosecuted. While it is true that the order apparently lacks some elements of finality, since it merely confirms the auditor’s report, without disposing of the intervenor’s petition, or making any order in reference to the same, and it would have been proper at the hearing in the court below, upon the ratification of the report, to dismiss the petition, and thus formally to give to the order the character of finality, we may assume here, under the present circumstances, that this was the purpose and effect of the order, and, therefore, that the appeal brings the merits of the case before us for review.

2. But it is very doubtful whether the exceptions taken to the auditor’s report are sufficient to raise any question for our consideration. The auditor is not a mere examiner in chancery, to take testimony for the convenience of the court and to return it to the court for its consideration. The auditor is a judicial officer, charged with judicial functions, as has been repeatedly decided; and his findings of facts are analogous to the verdict of a jury in a suit at common law. Such findings of fact are conclusive, unless their correctness is impugned under proper proceedings for the purpose. This cause was referred to him solely for the determination by him and the report to the court of one question of fact — the time at which the houses mentioned in this cause were trimmed out. The reference was at the special instance and request of the appellant and by his procurement. In the order of reference there was no requirement that the testimony, which the auditor was directed to take, in order to enable him to reach a determination, should be returned to the court, or made part of his report; and it may well be questioned whether the fact that he returned the testimony with his report justifies its being considered as part of his report. But, however this may be, it is very certain that a general exception to an auditor’s report, to the effect merely that the finding, instead of being in favor of one party, should have been in favor of the other, affords no sufficient ground for review of the report by the court. Nor can such ground be afforded by an exception, such as the appellant’s second exception is, that the trimming out in this case was substantially done, although numerous things were not done which are plainly and confessedly matters of trimming out. This amounts to an admission of the correctness of the auditor’s finding.

3. But even if we disregard these difficulties, it is quite apparent to us that the appellant’s contention cannot be here sustained.

It is well settled that, in reference to findings of fact by an auditor or master in chancery, his conclusions, “ depending upon the weighing of conflicting testimony, have every reasonable presumption in their favor, and are not to be set aside or modified, unless there clearly appears to have boen error or mistake on his part” (Tilghman v. Proctor, 125 U. S. 136, 149), which rule was repeated in the case of Callaghan v. Myers, 128 U. S. 617. In the case of Richardson v. Van Auken, 5 App. D. C. 209, 213, and again in the case of Grafton v. Paine, 7 App. D. C. 255, as • well as in some subsequent cases, we have had occasion to enforce this same rule. In the case of Richardson v. Van Auken it was said:

“This rule requiring exceptions to be specific and definite in pointing out the supposed errors in the report, has a close logical relation to another, rule of practice equally well established, and that is that the findings of a master or an auditor, concurred in by the court below, are to be taken as presumptively correct, aqd will be permitted to stand, unless some obvious error has intervened in the application of the law or the principles of the decree under which he acts, or some important mistake has been made in the evidence, and which has been clearly pointed out and made manifest. This rule has been repeatedly affirmed by the Supreme Court of the United States, and is one of general application in the equity practice, both in the Federal and State courts of the country.” Citing Tilghman v. Proctor, and several other cases in the Supreme Court.

Tested by this rule, no sufficient cause been shown by the appellant for disturbing the auditor’s report. It is not claimed that there has been any mistake by the auditor in the application of the principles of the law or of the order of reference under which he was acting, or that he made any important mistake, or any mistake whatever, in the evidence. The question referred to him was one simple question of fact. Upon that question there was conflicting testimony; and as his conclusion of fact from that conflicting testimony, he held that the contingency had not occurred upon the happening of which the appellant’s claim depended. Under these circumstances, we would not be disposed to reverse that conclusion, even if the testimony failed to support it less strongly than it does. We think, in fact, that there was ample testimony to support that conclusion; and that the work of trimming out the houses in question, upon which the appellant’s right depended, had not been completed on November 5, 1896, the date of the payment by Emmons and Co. to the receivers, and which is the crucial day in the case. There were evidently many matters of detail then remaining to be done in the way of trimming out; and the testimony of some of the appellant’s witnesses, the effect of which was in a great measure nullified upon cross-examination, to the effect that they regarded the houses as then trimmed out, can not be permitted to weigh in the balance as against the positive and decisive testimony that many things were then undone without which it is vei’y plain that no house could properly be stated to have been trimmed out. That these details were left undone, as is claimed, in consequence of other work, such as the construction of the staircases, the erection of the mantels, and the putting in of the bath tubs and water closets, is clearly no answer to the objection. The statement shows that the period in the progress of the work had not been reached at which the houses could properly be regarded as trimmed out. And especially in a case like the present, where the owner wTas his own builder and contractor, and where the construction of the whole and entire work was within his control, and where the right of the appellant as his assignee is no greater than the right of Walton himself, it would be equivalent to permitting a man to take advantage of his own w'rong to allow him to neglect and disregard these details, and to put forth a work as substantially done because the bulk of it has been done. Any such conclusion as this, if sanctioned by the courts, would demoralize the operation of building houses and offer a premium to negligence and dishonesty.

It is practically admitted in argument on behalf of the appellant, and this is the gist of the second exception taken by him to the auditor’s report, that the work of trimming out the houses in question was not entirely finished on the day specified, but that it was substantially completed, there being only about fifty dollars’ worth of work to be done, as is claimed; and the contention is that the appellant should have been allowed the amount of his claim with a deduction of this sum of fifty dollars. But the claim of the appellant that., there remained work to be done only to the amount in value of about fifty dollars, is not supported by the testimony. There is testimony that would justify an estimate of $250 or $400. We have no finding by the auditor on that point; and it is no more than a gratuitous assumption that the amount of trimming undone would cost no more than fifty dollars. But even assuming that the cost of completion would be no more than that sum, we are not justified in regarding the sum of fifty dollars as a mere trifle that may be disregarded.

The appellant seems to think that the case is one for apportionment. But that is plainly a mistaken -theory. As well might it be maintained that a note payable in ninety days might in equity be regarded as payable in eighty-nine days, or that at the end of eighty-nine days a proportional amount might be regarded as due and payable. Here was an order operating as an equitable assignment of a portion of a certain specified fund, and payable on the happening of a certain specified contingency, namely, the completion of certain work. That contingency had not accrued, and the order therefore did not become payable. No principle of law or equity requires that at any time before the happening of the contingency any proportional part of the order should be regarded as payable. So to hold would be to introduce chaos into the mercantile law.

The appellant is not without his remedy; but plainly it would be neither justice nor equity to deprive other parties of money to which they are justly entitled, in order that the appellant should have the benefit of an order before that order becomes due and payable. For here his claim is based upon his order; and the apportionment of that order would be an unjustifiable preference in his favor as against others equally entitled and with claims equally just.

We are of opinion that there is no error in the order appealed from, and that this order should be affirmed, with costs. And it is so ordered.