The opinion of the court was delivered by
Redfield, J.— The facts, found by the auditor, would seem satisfactorily to dispose of the first and last items in the plaintiffs’ account. If the plaintiff performed the services as professional, and agreed to receive pay for all such services, in goods, at defendant’s store on demand, he cannot recover therefor, unless the defendant refused to deliver him goods, on reasonable request, which is not pretended. And it will be equally in vain for the plaintiff', to expect to recover for professional services, by changing the name of the charge, to that of fees as a witness, which, it seems, was attempted in the present case.
Butin regard to the charge of $1,50 in the plaintiffs’account' “ for boarding” &c., the court do not well comprehend how the auditor has made' any legal disposition of the same. It may be true that the plaintiff’ ought not to recover. I mean ought not to recover, in moral equity and good conscience ; and still the legal claim may stand in such a “ questionable shape,” that, like Banquo’s ghost, “ it will not down at our bidding.” If, for instance, the plaintiff , presents a claim on book against the defendant and the defendant presents no claim, but, as in the present instance, proves, to the satisfaction of the auditor, that he has a legal claim on book against the plaintiff to a greater amount than the plaintiff claims, and the plaintiff, to rebut this proof, shows that he has still further claims, which he might present, from all which the auditor is satisfied that there would be a final balance, perhaps, against the plaintiff, still, nothing is adjusted, and no adjudication made. The report is simply that plaintiff ought not to *79recover. We think in the action on book account, either party may sue, and insist upon an adjustment of the account, and if the othar party refuses to present his account, the plaintiff must recover, unless the defendant can show an agreement or understanding on both parts, to have it apply in payment of some claim on the part of defendant, which is not shown in the present case. , ,
The judgment of the county court, is reversed and the report set aside and the case referred.,