Statement of the Case.

ant, so that he could not make delivery within the time, and had refused to allow delivery to be made when he was ready to do so, neither the claimed fact that the time of performance was limited by the contract, nor the evidence which it was claimed supported it, could be considered, the referee having neither found nor refused to find specifically on such claimed particular fact.

III. COSTS OF APPEAL.

1. WHEN NOT ALLOWED TO EITHER PARTY.

a. Will not be when the judgment below was for too much, and plaintiff on discovering the error offered, soon after the appeal, to make the proper reduction.

Before MONELL, Ch. J., FREEDMAN and SEDGWICK, JJ.

Decided June 7, 1875.

Appeal from the judgment of a referee.

The action was to recover damages for the breach of a written contract for the delivery of materials for building. The plaintiff alleged the non-delivery, and claimed to recover the difference between the market and contract price.

The answer averred that the materials were to be delivered before the commencement of the next ensuing winter; that the plaintiff neglected to proceed with the work, and would not permit the defendants to make the delivery within the time aforesaid; and that he so improperly delayed the erection of the building, and so obstructed the defendants, that they could not make the delivery of such materials, and had refused to allow the delivery to be made when the defendants were ready to do so.

The action was tried by a referee who found as facts: That under the agreement, the defendants delivered to the plaintiff certain materials mentioned therein, but notwithstanding that the plaintiff fully did and performed all the terms and conditions of the agree

Statement of the Case.

ment on his part to be done and performed, the defendants from the middle of December, 1871, neglected and refused to deliver to plaintiff such materials in numbers and amounts as required under said agreement up to January 20, 1872; and on and from that day forth, defendants have wholly failed and refused to deliver to plaintiff any such materials whatever.

That at the time of such neglect, failure, and refusal, such materials were largely appreciating in market value, and in consequence of such neglect, failure, and refusal, the plaintiff was compelled to purchase, and did purchase for the building of said school-house, from other persons than the defendants, and at prices largely in excess of the prices agreed in and under the agreement to be paid therefor to the defendants, certain building materials, and was compelled to pay, and did pay, for the delivery thereof, and for cartage for the same; and that he paid for said materials in excess of what he was required to pay under the contract, and for carting the same, the sum of eighteen hundred and forty-nine dollars and forty-nine cents.

That such materials so purchased from other persons than defendants, were fairly and reasonably worth the sums paid therefor by the plaintiff, and the sums paid for carting the same were fair and reasonable.

The defendants excepted to the several findings of fact.

No exception was taken to the admission or exclusion of evidence: nor was the referee requested to find any facts other than such as were found by him.

The defendants appealed from the judgment.

After the appeal was taken, an error in the computation of the referee was discovered amounting to five hundred and thirty-nine dollars and twenty-four cents. Whereupon the plaintiff and respondent gave to the defendants and appellants a written stipulation to deduct that sum from the judgment.

VII. -29

Opinion of the Court, by MONELL, Ch. J.

The stipulation was produced upon the argument of the appeal.

Townsend & Mahan, attorneys; and H. P. Townsend, of counsel for appellants.

B. P. Kernan, attorney; and J. A. McCaffery, of counsel for respondent.

BY THE COURT.-MONELL, Ch. J.-The contract was silent as to the time of delivery, and either party could have limited the time by a demand or offer. Omitting to so limit the time, it was a continuing contract, until rescinded by the failure of the defendants to perform.

There was some evidence tending to show some intention or understanding of the parties, that the material was to be delivered before the close of the current year; but it was not of a nature to so limit the time as to excuse a performance afterwards.

The referee has made no finding on that subject. His general finding is, that the plaintiffs have, and that the defendants have not performed the contract. He was not requested to find that the time for the delivery of the materials had by parol been fixed by the parties; and there is no exception by the defendants that will enable them to insist now that the evidence would have warranted such a finding.

The court in reviewing a referee's judgment can look only at his findings of fact, and if they are sustained by the evidence, the judgment must be affirmed (Anderson v. West, 38 Superior Court Reports, 441). To raise any other question, there must be a refusal to find.

That presents a question of law which may be examined by the appellate court (Meacham v. Burke, 54 N. Y. 217).

Opinion of the Court, by MONELL, Ch. J.

The presumption is that the referee has not alone found all the facts necessary to support his conclusions of law, but that he has also found all the facts warranted or sustained by the evidence. And if it is claimed that there are other or further facts which there is evidence to support, the attention of the referee must be directed to it. If it is not, the court will not, as was said in Mosher v. Hotchkiss (3 Keyes, 161), explore the evidence to ascertain whether there are not other facts which might have been found, and if found, would have authorized a discussion of the questions now for the first time suggested.

And therefore it is that all the presumptions are, that the findings are in harmony with the conclusions upon all questions, when the evidence is capable of that construction (Morgan v. Mulligan, 50 N. Y. 665).

The general finding, therefore, that the defendants had failed to perform their contract with the plaintiff, is not affected by any evidence which it might have been claimed limited the time of delivery.

Throwing all that evidence, as we must, out of view, it was clearly established that the time of performance was not fixed or limited; and that until it was fixed, the plaintiff could demand performance. It was also established that he did demand performance, and that performance was refused.

The remaining question is one of damages.

The rule adopted by the referee was correct; viz., the difference between the contract price and the fair market value of the materials.

The error in allowing cartage as part of the damages, was discovered by the respondent soon after the appeal was taken, and he offered to deduct the amount from the judgment. It follows from our view of the whole case, that the appellants ought to have accepted the offer and discontinued their appeal.

We can now, however, modify the judgment by

Statement of the Case.

deducting from it the sum of five hundred and fortythree dollars and twenty-four cents, with interest from December 16, 1874, and as modified it should be affirmed, but without costs of the appeal to either party.

FREEDMAN and SEDGWICK, JJ. concurred.

SARAH L. HUDSON, PLAINTIFF, 0. REUBEN SMITH, ET AL., DEFENDANTS.

I. ESTOPPEL BY RECORD, AND RES ADJUDICATA.

1. A judgment in an action brought pursuant to the provisions of § 32, article 2, title 3, chap. 8, part 3, R. S., relative to charging heirs and devizees with the debts of the decedent, to the extent of the estate, interest, and right in the real estate descended to them from, or devised to them by, such decedent, to charge certain real estate with a debt due the plaintiff by a decedent, estops the parties defendant and their privies from thereafter disputing that the decedent had such estate, interest, and right in such real estate, as she was by the complaint in such action alleged, and by the decision thereof, adjudged to have. 2. A judgment of a court of competent jurisdiction upon any fact, title, or question distinctly put in issue, or directly involved in the suit, is conclusive in any other action between the same parties or their privies, in respect to the same fact, title, or question.

II. Legal title, effect of implied trust upon; see remarks of the learned judge.

III. Subrogation-Right of party in possession, claiming ownership to pay off a lien and claim a subrogation; see remarks of the learned judge.

Before MONELL, Ch. J., FREEDMAN and SEDGWICK, JJ.

Decided June 7, 1875.