Ward v. Ward

21 W. Va. 262, 1883 W. Va. LEXIS 104

• Court: West Virginia Supreme Court
• Decided: March 17, 1883
• Status: Published

Opinion

Snyder, Judge,

announced the opinion of the Court:

The appellant insists that there was no error on the face of the report, and, consequently, so much of it as was not excepted to by either party is presumed to be admitted by them, respectively, to be correct, and that it was, therefore, error for the court to remodel and restate the whole account without reference to the position taken and occupied by the parties in relation to said report.

The party complaining of a commissioner’s report must point out the error of which he complains by exceptions thereto so as to direct the mind of the court to it, and when he does so the parts not excepted to are presumed to be admitted to be correct, not only as regards the principles but also as to the evidence on which such parts are founded.— McCarty v. Chalfant, 14 W. Va. 531; Chapman v. P. & S. R. R. Co., 18 Id. 185.

A commissioner’s report, if erroneous on its face, may be objected to on the hearing, though not excepted to; but without such exception it cannot be impeached by adult parties on grounds and in relation to matters, which may be affected by extraneous testimony. McCarty v. Chalfant, supra; Hyman v. Smith, 10 W. Va. 298. When adult defendants fail to except to a repoi-t of a commissioner they are deemed to acquiesce therein, and they will not be permitted to impeach it either at the hearing of the cause or in the appellate court except for errors apparent upon its face. Wyatt v. Thompson, 10 W. Va. 645; Laidley v. Kline, 8 Id. 218; Penn v. Spencer, 17 Gratt. 85; Ogle v. Adams, 12 W. Va. 213.

In Perkins v. Saunders, Tucker, Judge, in delivering the opinion of the court says: “ I have considered it as a settled principle that this court will not enter into an examination of accounts referred to a commissioner, and settled by him, unless an exception to them has been taken in the court of chancery, nor then, unless the exception be so stated as that this court may decide upon the equity, or legality, of the principle only, upon which the article is admitted or rejected, without wasting their time in adjusting the particulars of a long and intricate account — a business which is the peculiar province of a commissioner and accountant — and which, if this court were to admit themselves to be bound to engage in, would in a year or two put a total stop to the administration of justice in civil causes in this commonwealth.” 2 H. & M. 422; 14 W. Va. 559.

The foregoing principles, for the most part, have reference to appellate courts, but it seems to me the same reasons, which make them proper and necessary for the disposal of the business in those courts, would require their observance in courts of original jurisdiction, the judges of which have as little and, perhaps, less time and fewer facilities for making calculations and unravelling tedious details of complicated accounts. The main object of referring a cause to a commissioner is to relieve the court of such labors. In almost every settlement a large portion of the items are undisputed, and the commissioner having the parties before him can more readily than the court ascertain and eliminate the undisputed from the controverted matters, and then report upon the whole according to his best judgment, leaving it to any party dissatisfied with any part of the report to except thereto, so as to direct the mind of the court to the precise subject of dispute. In some instances the controversy is confined wholly to questions of law and in others to matters of fact. In either case, if the parties are sui juris, and no error appears on the face of the report, it is taken to be 'prima fade correct, and, if no exception is taken thereto, it is confirmed as of course without an examination of the proofs by the court. This is done upon the presumption that the parties by making no objection concede the correctness of the report. And for the same reason, if any part of the report, or separate items thereof, remains unexcepted to such part, or such items, will be regarded by the court, and may be treated by the parties as admitted to be correct. The court will not permit any party to impeach a report, correct on its face, as to any matter which may be affected by extraneous evidence unless notice has been given thereof by exception before the hearing. The evident purpose of this rule is to prevent surprise and require the parties to deal frankly with each other and not permit the laying of a trap to obtain an.undue advantage at the last moment when all explanation is precluded. It is just as essential to the ends of justice and the due administration of the law that the court should observe this rule as it is for the court to require its observance by the parties. If the court can at the hearing ignore the report and disregard the effect thereof as to the parts not excepted to, the surprise upon the parties may be as great and the result as detrimental as if the court, at the instance of a party, had permitted objections to be taken at the hearing as to matters not excepted to and which might be affected by extraneous evidence. It seems to me, therefore, that the report of a commissioner on the face of which no error appears, and which is made in a cause rightly referred, must be treated by the court as well as the pai’ties, at the hearing, as correct, not only so far as it settles principles, but, also, in regard to the sufficiency of the evidence upon which it is founded, except in so far, and as to such parts thereof, as objection may have been taken by proper exceptions filed by any party; and the court is as much bound by the report so unexcepted to, in whole or in part, as are the parties themselves, and it is error for the court, at the hearing, to remodel and restate the whole account without reference to the report or the action of the parties in excepting or not excepting thereto. If in any case the court is not satisfied with the report in regard to matters not excepted to and which might be affected by. evidence aliunde, it should recommit it with instructions indicating its opinion, so that the respective parties might have an opportunity of meeting any new phase of the matters thus suggested.

In the case at bar I am of opinion, that the complicated condition of the accounts between the parties and the voluminous and contradictory character of the testimony in relation thereto fully warranted the reference to a commissioner. The parties are all sui juris; and they having availed themselves of their legal rights by excepting to such parts of the report, as they deemed to be erroneous, the parts not excepted to -were presumed to be admitted by them to be correct. In this condition of the cause the court made a statement oi the accounts between the parties which it made the basis of the decree of December 6, 1879. This statement was obviously made without reference to the report or the exceptions filed thereto. It seems to be founded entirely upon the court’s estimate of the proofs in the cause, because it introduces items not allowed by the commissioner and not excepted because not allowed, and it excludes others allowed by the commissioner and not excepted to by any party. The parties, in the absence of any exception had a right, as we have seen, to rely upon the sufficiency of the evidence to sustain such parts of the report as were not excepted to; consequently, the court erred in disregarding the report and entering a decree lounded on its own statement of the accounts between the parties without reference to said report or the implied admissions therein of the parts not excepted to, especially as the facts might have been explained or changed by extrinsic evidence.

Proceeding now to dispose of the exceptions to the report of Commissioner Jones as the circuit court should have done, this Court is of opinion that the plaintiff’sj/irsi, second, fourth and fifth exceptions and the seventh in part, are well taken and must be sustained. The first, because the rule upon which the commissioner computed the interest on the balances therein specified amounts to compounding and is, therefore, illegal and erroneous. The proper rule for computing interest, where partial payments have been made, is to deduct the payment from the aggregate sum of principal and interest, computing the latter to the date of the payment, and the balance forms a new capital; on that interest is to be computed from that time to the next payment, and so on for each payment; but with this caution, that the new capital be not more than the former, so that if the payment be less than the interest due at the time, the excess of interest must not augment the remaining capital, because that would be to give interest upon interest which would be unlawful. 'When the payment is less than the interest accrued on the principal at the date of the payment, no stop should be.made, but the interest should be computed until the payments, whether one or more, are sufficient to absorb the whole of the interest and then the same should be deducted from the sum of principal and interest — Lightfoot v. Price, 4 H. & M. 431; Hurst v. Hite, 20 W. Va. 183.

The second, and fourth because Washington G. Ward in his answer to the plaintiff's bill expressly admits that the plaintiff paid for him thirty-seven dollars and fifty cents to Caleb Boggess and sixty-five dollars to R. S. Ward.

The fifth, because the one thousand dollars referred to in this exception was charged on the account presented to said Washington G. Ward in 1869, when a settlement was attempted between said Ward and the plaintiff, and it was, also, asserted in the plaintiff's bill and charged on the account filed therewith, and its correctness was not questioned except by implication, in the answer of said Washington Gr. Ward to plaintiff’s bill, although he specifically and expressly disputed many other items of said account of smaller'amounts and less importance. Nor was its correctness disputed by said Ward at said attempted settlement or objected to so tar as can be ascertained from the testimony of A. Hutton and the defendant Jacob Gr. Ward both of whom were present on that occasion. The sum is so large that it is not at all probable it would have been allowed to stand without objection on these occasions, while a number ot smaller items were objected to and declared erroneous, unless it had been a proper charge. I am very much inclined to believe that this one thousand dollars represents the payment referred to in the deposition of IT. Snyder as paid by him for the plaintiff to said Ward. The sum is not precisely the same hut the small difference may be readily accounted for by the interest which accrued between the date at which it is charged and the time of the actual payment by Snyder. The title-bond given but a few weeks before required a payment in excess of this sum at the date of this charge. It is not likely that the plaintiff’ would wholly fail to meet any part of such a large payment upon a contract so recently made. It is more likely the arrangement to meet it had been made at the time the contract was entered into. I think, therefore, this item of one thousand dollars, paid November 1, 1857, should be allowed.

The seventh exception, except as to the item of ten dollars, alleged to have been paid in October, 1865, should be sustained. The said item of ten dollars was disputed in the answer of Washington G. Ward and is proved to be incorrect by <T. G. Ward to whom it is alleged it was paid. Neither of the other items in said exception are expressly denied by said W. G Ward in his answer to plaintiff’s bill, nor does it appear that he objected to any of them when presented to him by Hutton for settlement in 1869, although other items on the account were then disputed.

The pffaintiff’s third, sixth and eighth exceptions must be overruled. The third, because the two hundred and fifty dollars therein referred to was denied and declared erroneous by W. G. Ward when presented to him by Hutton, and there is no evidence to sustain said item or controvert said denial.

The sixth is not well taken for the reasons hereinafter stated in considering the defendant’s exception. And the eighth is simply an assertion in regard to the evidence and is too general and indefinite to constitute a sufficient exception to a report. Sandy v. Randall, 20 W. Va. 244.

The defendant’s exception to said report must be sustained, because tbe proof, if it has any relation whatever to the one thousand five hundred dollars excepted to, is wholly insufficient to establish it as a proper charge. The circumstances tend strongly to cast suspicion upon this item and the seven hundred dollars mentioned in the plaintiff's sixth exception, if they do not fully condemn them. It is shown conclusively that neither of these large items was charged on the account of the plaintiff, which was furnished to A. Hutton in 1869 to settle by, nor was either on the account as originally filed with 'the plaintiff’s bill. They were not on said account when Washington Gf. Ward answered the bill; and they were never claimed or asserted until after the death of said Ward, who was, perhaps, believed to be the only person that could show their injustice. After the death of the original defendant they seem to have been surreptitiously added to the account filed with the bill at the foot of the other charges. In the answer subsequently filed by the executor, Jacob G. Ward, he positively denies the correctness of both these items. The testimony by which they are attempted to be supported is altogether too vague and conjectural to establish such large items which, if correct, it may well be presumed could be proved with more certainty. J. W. Marshall, by whom it is alleged the one thousand five hundred dollars was paid, proves nothing in support of any such payment. His testimony may relate to a different transaction and with equal propriety might be invoked to prove any other charge on the plaintiff’s account. Much of the other testimony is very improbable and much discredited if not successfully impeached by the defendants’ proof and the circumstances in the cause. Hpon a careful consideration of all the evidence I am clearly of opinion that the said items of seven hundred dollars and one thousand five hundred dollars should each be disallowed.

I am, therefore, of opinion, for the errors aforesaid, that the decree of December 6, 1879, should be reversed with costs to the appellant against the appellee, Jacob G. Ward, executor of Washington G. Ward, deceased, to be levied of the goods of his testator in his hands to be administered, and that the cause be remanded to the said circuit court of Han-dolph county with directions to said court to recommit the report of Commissioner Jones to him or some other commissioner with instructions to such commissioner to reform said report and account and ascertain the balance between the plaintiff and the estate of said Washington G. Ward, deceased, according the principles of this opinion and report to said court; and that the cause be further proceeded in in said circuit court in accordance with the rules and practice in courts of equity.

Judges Johnson and Green Concurred.

Decree Reversed. Cause Remanded.