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.