The official report states the facts.
1. The case made by the pleadings involves rather complicated matters of account between the parties, and it was referred to an auditor, who made his report of the testimony introduced before him, and his conclusions or findings of fact. One ground of exception filed by the plaintiff to the report is, that it allowed defendant $262.70 more than he claimed in his answer. It appears that this item of expenditure was incurred by the defendant after he had filed his original answer, and that the defendant filed an amendment to his answer claiming generally an indebtedness to him by the plaintiff, and asking that the amount due him be determined and fixed by the court. Simply because the above item was not specifically set forth in the answer does not render a finding thereof in. favor of the defendant erroneous; especially as it does not appear that the plaintiff excepted to the admission of testimony by the auditor on this point.
2. Plaintiff’s counsel contended in the argument that, under the written contract between the parties, all that was chargeable against her for building purposes was the sum stipulated in the contract. This position is at singular variance with what the plaintiff contends for and concedes in her petition ; for she offers to pay the defendant, not only for the improvements on the premises in accordance with the original plan of the house and the Hilley & Murdock contract, but also for other expenditures, where a fair and reasonable price has *276been charged for material and for work, provided the same has benefited the property to the amount of the expenditures, and if not, then pro tanto. But besides this, the agreement relied on by the plaintiff only specifies a contract made with Hilley & Murdock to complete the buildings at $1,850. It seems that Hilley & Murdock abandoned this contract without any fault of the defendant; and it was no violation of either the letter or spirit of the contract that plaintiff should account to the defendant for all improvements of value and necessity he had placed upon the lot she claimed, even though they should have amounted to more than the sum contemplated by the Hilley & Murdock contract.
The exceptions filed to the auditor’s report were mainly those of fact. This was an equitable action. Upon an examination of the record we are satisfied that the findings of the auditor were fully supported by the testimony introduced before him. Indeed, the weight of the evidence seems to sustain his conclusions. But an important question in this case is, whether or not, in an equitable cause where there is any conflict in the evidence, the judge has, under the law, the power to overrule the exceptions, and thus exclude from the jury the issues of fact raised. It is a well-established principle in this State that, in a case at common law, where a party excepts to an auditor’s report on the ground that his finding is contrary to the evidence, he has the constitutional right to have all questions of fact passed upon by a jury, and a legislative denial of that right is unconstitutional. It is equally well established that, in equity causes the right of a trial by jury is not constitutional, but statutory; and a legislative restriction thereof, in cases of auditor’s reports, would be constitutional. Mahan v. Cavender, 77 Ga. 118; Poullain v. Brown, 80 Ga. 27; Mackenzie v. Flannery, 90 Ga. 590 (1); Central Trust Co. v. Thurman, 94 Ga. 736 (6), 750. These decisions were based upon the act of 1885, in which the legislative intent was clearly manifest as to the powers intended to be conferred on the judge in such cases. That act declares: “It shall be the duty of the judge of the superior court to carefully and attentively examine the report of the master in chancery, or auditor; and if it does not ap*277pear that error has been committed, he shall approve the report and dismiss the exceptions, and a verdict shall be taken in accordance with the findings of the master in chancery, or auditor.” Not only was the power given the judge, but it was imperative on him to overrule any exceptions, whether of law or fact, unless it was made to appear that the auditor had erred in his findings. The decisions above cited ruled that this actl was unconstitutional as to common-law cases, but its constitutionality was upheld as to proceedings in equity. But the auditor’s act of 1894, as amended by the act of 1895, was in force when the case we are now considering was referred to and passed upon by the auditor. The terms of that statute create some doubt as to what powers it intended to confer on the judge in passing upon exceptions of fact to an auditor’s report in an equity cause. That act is embodied in the Civil Code in sections 4581 to 4603, inclusive. Section 4595 declares: “In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, juidjii equity cases by the jury when approved by Ihn judge.” Section 4596 declares: “In equitable proceedings where an auditor has been appointed by the superior court, if the judge approve any exception of fact, the same shall be submitted to the jury as in other cases, with the same presumptions, burdens, and right to open and conclude.” Section 4600 provides: “ Where exceptions of fact have been filed to the report of an auditor, the judge shall cause the issue thus made to be submitted to the jury, in which trial only so much of the ■evidence reported as is material and pertinent to the issue then on trial shall be read to the jury.” Section 4601 provides: “If exceptions are filed, after the same have been considered and passed upon by the court or jury, or both, as the case may be, the court shall order a verdict or a decree in accordance with the report, and the changes made by court or jury, unless the same shall require a recommitment.”
Construing all the above provisions of the statute together, there is clearly a distinction drawn between the powers and duties of the judge in cases at law and in those in equity. In the former no discretion is given him; he is obliged to submit *278/all questions of fact to the jury. In the latter he must in some way pass upon such exceptions before they can reach the jury. But what is the extent of his power? Does the statute require of him the meaningless act of allowing all exceptions of fact in equity proceedings as a matter of course, and without any examination into their merits? Or, does it require an investigation, and if he discovers any conflict in the evidence, however slight, he shall approve the exceptions aftd submit the issue to the jury? If the judge be powerless to disallow the exceptions ; | unless the evidence demands the conclusions reached by the j! auditor, then there is practically no difference in this respect j between common-law cases and cases in equity. For in any C case where the evidence demands a certain verdict, the judge can instruct the jury to so find. We therefore conclude that the statute confers upon him something moré than the granting of a mere perfunctory order allowing all exceptions of fact when there is any testimony whatever upon which they can be based. On the other hand, we are not prepared to go to the extent of saying that it is the duty of the judge to overrule such exceptions unless it is made to appear to him that the auditor has erred. The act of 1894 places no such imperative obligation on him. It seems to leave much to his sound discretion v , in the matter. If, upon examination of the auditor’s report of \ the testimony, he discovers such conflict in the testimony that 'in his judgment the issue should be submitted to a jury, such discretion, unless abused, would not be interfered with by a court of errors. A decision allowing exceptions and submitting issues of fact to a jury might properly be reached, though the judge might not be prepared to say that the auditor erred, and though he had reached no definite conclusion on the subject himself. . On the other hand, where there is sufficient evidence to support the auditor’s rulings, and no error of law has been committed, this court will not reverse the judgment of the court below dismissing the exceptions and confirming the auditor’s report.
Under § 4850, Civil Code, there was no abuse of discretion in directing a division of the costs between plaintiff and defendant.
*279Applying the above principles to the facts in this case, we conclude that there was no error in the decision of the court complained of in the bill of exceptions; and the judgment is accordingly Affirmed.
All the Justices concurring.