
    Orlando Stevens and Walter C. Stevens, defendants below, vs. Richards, Trusdell, & Co. plaintiffs below.
    
    —IN ERROR.
    
    
      Franklin,
    
    
      January, 1827.
    
    In an action on book account for articles delivered which have latent defects, the value of the articles is the legal rule of damages, and not the customary price of that species of article, unless controled by a special agreement of the parties.
    Both parties to an action on hook account being made witnesses by the statute, each has a right to testify, and also to demand the testimony of the other. And they are competent to testify to every material fact in relation to the account, proper to be considered in deciding upon the respective claims of the parties.
    THIS was a writ of error brought to reverse a judgment of Franklin county court, rendered upon and approving a report of auditors in an action on book account.
    The report was as follows:-—
    Your auditors in the above case reportthat they notified the defendants of the time and place of said audit, who did attend: — that on the 6th day of September, 1826, they duly examined and adjusted the book accounts of the plaintiffs, from which they find a balance due the plaintiffs of 580 dollars and 91 cents, to balance said accounts.
    And your auditors beg leave specially to report, that on hearing and duly weighing the evidence, they found the following facts :-—
    1. That the defendants bought of the plaintiffs, at their store in Troy, three hundred Spanish hides, at the accustomed price, which constituted the principal item in the plaintiff’s account.
    2. That one half of said hides, at the time of said sale, were more or less damaged ; from such as were of no value to those that were slightly injured.
    3. That the defects in said hides were latent and not known to either of the parties, at the time of the sale — -that the nature of the property will admit of latent defects.
    From the above case it were contended by the defendants, that in an action on book account, the actual value of the property at the time of the sale should, in law, be the rule of damages'; while on the other hand, it was contended, that without an express warranty or fraud, the plaintiff would be entitled, in law, to recover, in this form of action, the amount of the account, if found to be charged at the customary prices, which latter position was supported by your auditors, and no deduction was made on said account, by reason of the damages aforesaid.
    Your auditors would further state, that at the trial of this case, the plaintiffs did neither of them attend. That Walter C. Stevens, one of thé defendants, testified before your auditors, that, at the time he purchased said hides of the plaintiffs, they laid in a pile in the store loft; that he requested the plaintiffs to let him have the privilege of picking said hides, to which the plaintiffs objected, and at the same time observed to said defendant tUa.t he knew them to be good. Upon the above statement, your auditors did not consider there was an express warranty of said hides, and further, if it should amount to an express war-that the oath of the party would not be legal testimony to prove it.
    •Objections were filed against the acceptance of this report, for the causes appearing on the face of -the report. But the county court overruled the objections, accepted the report, and rendered judgment for the plaintiffs thereon.
    Exceptions being filed and allowed, the present writ of error was brought, assigning for errors the opinions of the court upon the matters aforesaid. Also, averring that there was error in this, that the county court accepted said report, notwithstanding th'e auditors had not stated the account, and returned the same into court.
    Plea, in rmllo est erratum.
    
    Adams, for the plaintiffs in error, insisted,
    1. That it does not appear by the auditors report, that the hides were sold and delivered at any fixed price; therefore the actual, and not the apparent value of them, should have been the rule of damages. — 1 Swift's Dig. 386. — 1 Campb. 113, Hibbard vs. Shec — Archibald's Pleadings, 23.
    2. That in an action on book, the parties are competent witnesses to prove the terms and conditions on which the articles, that make up the account, were delivered. — Slat. 141. — 4 Day's Rep. 288, Bryan vs. Jackson.
    
    3. The affirmation of the defendant, in error, that he knew the hides to be good, is an express warranty; at all events, is a declaration by which he ought to be bound. — 3 T. Rep. 51, Pasley el al. vs. Freeman. — Long on Sales 124. — Selwyn N. P. ■ 684, note. — Archibald's Pleadings, 24.
    4. The accounts of the parties, as exhibited to the auditors, should have been returned with the report.- — Statute 142.— Read vs. Barlow, 1 Aik. Rep. 148.
    By the Court. — That is not one of the exceptions taken on the acceptance of the report.
    
      Adams. We, nevertheless, insist, that we have a right to take advantage of it on error. The statute is express, that the account shall be returned into court.
    
      Swift, contra. — The only question presented in this case is, is a merchant who vends goods, answerable for a defect in such goods, (not known at the time) on the ground of implied warranty ? The defendants in error contend that he is not.
    No person is answerable for unsoundness in property sold, unless he is guilty of fraud, or has made an express warranty of soundness.— 2 Selwyn, N. P. 584, 5, 6.
    The principle, and' not the form of action, is to govern in the decision of this question.
    If the defendants are liable, on the ground of warranty or fraud, the plaintiffs are not deprived of their remedy by action but the damages cannot be offset in this way, for the auditors are not competent to go into the trial of a warranty, or a question of fraud.
   The opinion of the Court was pronounced by

Skinner, Ch. J.

It appears from the report of the auditors in this case, that the plaintiffs had charged to the defendants 300 Spanish hides ;.that at least one half in number were more or less damaged, and some altogether worthless; that the defect was latent and unknown to either party at the time; that they were charged at the customary price. The plaintiffs did not attend at the hearing. The auditors considered the oath of the parly not legal testimony to prove a warranty. From examining the record we are inclined to send the case back to the auditors, if for no other purpose, that they may make a more particular and full report. It is said the hides were bought at the customary price ; but whether the defendants understood they were to pay the price that other purchasers paid the plaintiffs for hides, or a certain given price, does not appear.

If a certain price was agreed upon, we are not advised why the auditors referred to the customary price, and omitted to name the price. The defendants insisted the value- of the hides was the legal rule of damages, and in this they were correct, unless controled by a special agreement of the parties. It is evident if there is a customary price to this species of property, it can only apply to such as is of a good or ordinary quality, and not to such, as from latent defects, is of no value.

Upon the question as to what facts the parties in an action on book account may testify, there has been much diversity of opinion. '

It was formerly considered, that if there was any special contract, as-to the price of the goods, the time, oí the mode of payment, it would not be shown by the testimony of the party.

This was manifestly unjust, as the plaintiff, having testified to the delivery of the goods, or the performance of the services, was, of course, entitled to recover — the law implying an undertaking on the part of the defendant to pay, on demand, the value. If the plaintiff is made a witness to testify to the sale and delivery of the goods, &c. and thus entitle himself to recover, the law, from those facts, implying an undertaking on the part of the defendant to pay, &c. surely the defendant must be permitted to call upon the same witness (the plaintiff) to oust the implication. As the parties are made witnesses, there can be no better rule, than that they should testify to every material fact in relation to the account, proper to be considered in deciding upon the merits of the respective claims of the parties; Any attempt to limit the inquiry before the auditors by any rule short of this, is believed to be impracticable. By the construction which has been given to the statute, both parties are made witnesses, each has a right to testify, and also to demand the testimony of the other.

B. F. Smalley and Henry Adams, for the plaintiffs in error,

Benj. Szuift, for the defendants in error.

The auditors say, in their report, one of the defendants testified, that the plaintiff declared, at the time of the sale and delivery, he knew the hides to be good; and it may be inferred, from |qle j-gpop^ that the defendant was, by this representation, induced *° fake them without further examination. Although we are not prepared to say, from the facts presented, that there was in law a warranty or deceit on the part of the plaintiffs, so as to entitle the defendants to redress; yet, as the case is to be sent back to the auditors, and, as ,we believe they neglected particularly to inquire upon that point, supposing the testimony of the party improper, we shall express no decided opinion thereon.

Judgment, that there is error, &c. and the judgment of the county court is reversed.

Prentiss, J. absent from indisposition.  