49 Barb. 362 | N.Y. Sup. Ct. | 1867
There is no force in the position taken by the counsel for the appellants that the referee’s finding of facts is insufficient, and therefore the judgment should be reversed. The findings objected to are
In respect to the first of these, the report of the referee is claimed to he insufficient, inasmuch as it does not find specifically whether the plaintiff did not in fact make the representations alleged ; or whether he made them and they were true ; or whether he made them and they were true but were not fraudulent; or whether they were made and were false but did not induce the defendants to enter into the contract. The finding in respect to performance by the plaintiff, is alleged to be insufficient, because it does not specify whether other freight was offered and refused as averred in the answer ; or whether or not the vessel could have carried more ; so that it is impossible to say whether the referee concluded that the vessel was full and therefore the plaintiff had performed, or that the vessel was not full, but no other freight was offered, and so the plaintiff had performed.
These several objections assume that the referee was required to report upon every issue made by the pleadings. But a referee is not required to find upon any other facts than those which enter into and form the basis of the judgment to be entered upon his report. He is not required to negative in express terms any other facts. Facts not found are necessarily negatived by implication. (Code, § 272. Nelson v. Ingersoll, 27 How. 1, and cases there cited,) Tested by this rule the report in the present case is clearly sufficient. It would have been sufficient in respect to the points objected to if it had found merely that the parties executed the charter-party set out in the complaint, and that the plaintiff fully performed its requirements on his part. Upon those findings the plaintiff would have been entitled to judgment for the sum found due and unpaid. The finding that the parties executed the charter-party, would have implied necessarily that the agreement was valid and binding upon both parties, and' would have negatived the allegation that the defendants were induced to enter into it by fraud on the
The next question is whether the findings referred to are against the weight of evidence. I have read all the testimony in the case, and I think that given on the part of the plaintiff fully sustains the conclusions of the referee. The most that the defendants can successfully claim in respect to it, is that it is contradicted in many essential particulars by the testimony introduced by the defendants, but that alone is no ground for reversing the referee’s decision. The testimony given on the part of the plaintiff fully meets that given on the other side. The defendant De Yertu testifies that the false representations alleged to have been made by the plaintiff personally, were made by him in a conversation which De Yertu says took place a few days before the charter-party was signed, and was the only conversation between them. But this is contradicted by the plaintiff, who testifies that he never saw De Yertu about chartering the vessel until after the charter-party was signed, he having been represented in the transaction by his agent, Salem. De Yertu also testifies to representations made by Salem as to the capacity of the the vessel; but it is apparent from all the testimony, that what Salem said on that subject was intended by him as the
The memorandum offered in evidence by the defendants was properly excluded.
The judgment should be affirmed.
Leonard, Ingraham, and J. C. Smith, Justices.]