The only exception taken to the charge is to that portion of it whereby the jury were instructed, in substance, that assumpsit for money had and received was maintainable for the recovery of any balance, which, under the rules of law given, might be found due on the accounts as presented.
*60We think the exception cannot be sustained. The case shows that the trust had been determined some considerable time before the action was brought, by the accomplishment of the purposes for which it was created, to wit, the payment of the debts of the cestui que trust; and the performance of all the trusts and a reconveyance of the balance of the trust lands practically discharged the trustee. 2 Perry Tr. § § 920, 921, and notes. But this did not necessarily release him from responsibility; for the cestui que trust might, nevertheless, even in the absence of any agreement to that effect, inquire into the prior administration, § § 922, 923 and notes. For a formal release by the cestui que trust to the trustee may be set aside on any misapprehension as to the basis on which the accounts were made up, although the cestui que trust has had am pie time for deliberation, they being only prima facie valid, § 923. And in order that a release, confirmation, waiver or acquiesence may have any effect, the cestui que trust must have full knowledge of all the facts and circumstances of the case, § 851. But in the case at bar there was evidence tending to show, and the jury must have found, that the alleged settlement was made subject to a rectification by subsequent suit if necessary. The bond had been surrendered against the express injunction of the plaintiff; and we have no doubt that the accounts rendered were subject to revision and would be corrected by this action, provided the finding of the jury upon this issue was correct. Arms v. Ashley, 4 Pick. 71; Harrington v. Curtis, 13 Met. 469.
2. The auditor seems to have acted as a referee instead of auditor; and instead of stating the account in the alternative, he gave it as his opinion that it had been deliberately settled by the parties. Even if Holmes v. Hunt, 122 Mass. 515, and the cases there cited are authorities to sustain the-auditor in expressing the opinion in relation to settlement, the defendant was not aggrieved by the exclusion of the last paragraph of the report; for the preceding paragraph was admitted, and that contained an affirmative statement of the same opinion, together with the substance of all that was in the last omitting the homiletic reflections on the subject.
*613. Tbe third exception is substantially disposed of under and by the first. If the requested instruction had been given, it would have taken from the jury the right to pass upon the issue relating to the condition of the settlement, and -was therefore-rightly declined.
Motion. We have carefully weighed all the evidence bearing upon the issue of conditional or full settlement on November 1, 1875. And while it is very conflicting, there is positive evidence on the part of the plaintiff, which, if true, is sufficient to sustain the finding for him. The jury had greater facilities than we for intelligently passing upon the credit to be given to the testimony on both sides; and, without needlessly lumbering this opinion with a critical analysis of the testimony, it is sufficient to say that the preponderance in behalf of the defendant is not sufficient to warrant us in disturbing the verdict on that account.
The jury, without any aid from an auditor, examined this account extending over a period of twenty-five years, returned a verdict for the sum of $2261.85. We have invoked the aid of one of the most experienced and intelligent accountants in the State, and after an elaborate and critical examination of the defendant’s accounts, including his private account, we find his disbursements and interest thereon so long as any balances existed in his favor, together with the sum charged by him for services and commissions, amounted, on November 1, 1875, when, as he says, a final settlement took place, to $11,491.69. His receipts, including interests thereon so long as balances existed against him, amount to $13,342.87, leaving a balance due to the plaintiff, at the date of the alleged settlement, of $1851.18. This sum with interest thereon to the time of trial, amounts to $2341.74, which is more than the verdict. It appears, therefore, that saying nothing of the defendant’s purchase of the Clark equity of redemption (on which the plaintiff had previously paid $392), and the payment of the mortgage from the funds of the cestui que trust, the defendant has no cause for complaining of the amount of the verdict.
Motion and exceptions overruled.
Appleton, C. J., Walton, Barrows and SymoNds, JJ., concurred.