An auditor’s report is made by statute prima facie, not conclusive evidence. The final conclusion of the auditor in favor of either party is as subject to be rebutted or controlled in the opinion of the jury, or of the judge when the case is tried without a jury, by the evidence or the particular facts or findings stated in the auditor’s report, as by other evidence introduced at the trial. Gen. Sts. c. 121, § 46. Commonwealth v. Cambridge, 4 Met. 35, 40. Taunton Iron Co. v. Richmond, 8 Met. 434, 436. Bradford v. Stevens, 10 Gray, 379. *301Peru Co. v. Whipple Manuf. Co. 109 Mass. 464, 466. Fair v. Manhattan Ins. Co. 112 Mass. 320, 329, 330. Holmes v. Hunt, 122 Mass. 505. Blackington v. Johnson, 126 Mass. 21. Hamilton v. Boston Port Society, 126 Mass. 407.
The particular facts reported by the auditor in this case did not show, as matter of law, either that Foye was or that he was not the agent of Dustin, but left that essential fact to be inferred as matter of fact from the facts reported. The verdict at the first trial was set aside by this court solely because the presiding judge had ruled, as matter of law, that the plaintiff could not recover. Emerson v. Patch, 123 Mass. 541. The ruling at the second trial, that the plaintiff was entitled to recover, without permitting the defendant’s counsel to argue to the jury, upon the auditor’s report and the facts therein stated, whether those facts justified the auditor’s final conclusion in favor of the plaintiff, was equally erroneous. The error at each trial consisted in withdrawing a question of fact from the consideration of the jury. Exceptions sustained.