
    Lemon Thomson, Resp’t, v. James McCaldin et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    1. Appeal—Case.
    Where an appeal is based upon a referee’s refusal to make findings the report and all the findings should be printed and the case should be settled by the referee; otherwise the court cannot say but that the matters complained of may have been covered by the report or by findings which do not appear.
    2. Sale—Construction of contract.
    An agreement that if the market for hemlock culls fell the defendants should have the benefit of the fall is not the same as one “ that if any other responsible lumber dealer should offer the same character of boards for a less price’’ the plaintiffs would furnish them at that price.
    5. Same.
    TJpon an executory contract for the sale of boards, defendants sought to counter-claim for special damages, because, as alleged, plaintiff knew that the boards were intended for a special use. Held, that the mere exhibition by defendant to plaintiff of a large number of contracts with others, most of which defendant had not signed, was not proof of notice to plaintiff, it not being shown that plaintiff read the contracts or was informed that this particular kind of lumber was needed for their performance.
    4. Same—Demand.
    A legal demand upon plaintiff is not made by a request to him to ship the boards and leave a difference over the price, which had arisen, for future settlement.
    •5. Same—Damages.
    It is inconsistent for defendant to say that they could buy all the boards they wanted of responsible dealers at prices lower than those originally made by plaintiff and then to say they could not buy them of anyone; and if they waited until late in the season to buy, in reliance upon the contract with plaintiff, and were at that time unable to find such boards, they should show that that was the case.
    6. Same.
    Where, as alleged, defendants had contracts with vessel owners to do certain work, and pine, spruce and hemlock were mentioned with higher and different prices for pine and spruce, they do not show that they were damaged by proof only of their failure to get the hemlock, there being no proof that they received for pine and spruce only the price of' hemlock.
    
      H. Same.
    If defendants, while bound as alleged to vessel owners to do work requiring such hemlock, during the season sold such hemlock to other persons, to that extent defendants incapacitated themselves to keep their contracts and for a failure so caused cannot hold plaintiff.
    Appeal from judgment in favor of plaintiff entered on report • of a referee.
    Action for lumber sold and delivered, and for demurrage. Defendant set up a counter-claim, which was overruled.
    
      J. Stewart Ross, for app’lts; Isaac Lawson, for resp’t.
   Learned, P. J.

The only questions presented on this appeal arise on the counter-claim.

Many of the points urged by the appellant relate to the refusal by the referee to find certain facts and certain conclusions of law as requested. Now there is this serious difficulty in passing on these points, that the appellant has not furnished us with a copy of the referee’s report. We are, therefore, unable to know what facts the referee did find. There seem to have been forty-five requests to find, of which twenty-three are not printed. So that we cannot tell whether or not the report and the other findings disposed of the matters contained in these requests. It is possible, at least, that the report or the other findings passed upon the very matters, for the refusal to find which the appellant now asks a reversal. It is not a proper presentation of the case on appeal when the appellate court is not fully informed as to all the findings of the referee, and especially as to his report. We ought to know what facts the referee round before we can justly determine whether a refusal was improper. Further than this, the case does' not appear to have been settled by the referee.

The defendant urges that the referee erred in refusing to find the twenty-fifth request. This was a request to find that on the agreement made about April 1, 1886, the plaintiff and his partner agreed with the defendant, that “if any other responsible lumber dealer should offer the same character of boards for a less price than,” etc., then plaintiff and his partner would furnish -the boards contracted for at the price at which defendants could procure such boards from such other dealers.

Now the evidence on which the defendants insist that the referee should have made this finding is to the effect that, if the boards went lower, the defendants were to have the benefit of the fall in the market. This is a different agreement from that which the referee was requested to find There may have been some evidence tending to support this request; but much of the evidence on this point is to the effect above stated. And we cannot say that the referee erred in this finding. There is a decided difference between a contract that defendants should have the benefit of any fall in the market price, and a contract that plaintiff should sell his lumber for such a price as the defendant might obtain from some responsible dealer, without limitation as to the quantity for or the circumstances under which such price should "be made. And on the question of fact the defendants produced, a memorandum book of plaintiff’s partner, which contains an entry: “If price go lower McOaldin to have benefit.” This would be a safe and definite arrangement. One dependent on the price at which any responsible dealer might offer such boards .at would be very unsafe and uncertain.

The next request contains the words “ pursuant to said agreement.” As the referee had not found the agreement he could not make this finding, which assumed the existence of the agreement

On the examination of the evidence on which defendants claim that the referee erred in refusing to find the twenty-eighth and twenty-ninth requests we cannot say that he was in error. We think that the mere exhibition to plaintiff’s partner of a bundle of so called contracts, with nothing said to him about the contracts, even taken with the testimony of Mr. Shaw, is not evidence which shows that there was error in this finding. These so called contracts and some others subsequently made were afterwards given in evidence. If they contain any agreements binding on defendants, such agreements are that defendants are to do certain work on ships “at current rates, not exceeding prices here named.” And the prices named, so far as we can see, exceed the price of the contract in dispute.

The thirtieth, thirt y-first and thirty-second requests relate to the alleged demand by defendant for the performance of the contract. The subsequent thirty-fourth request which the referee did find shows the reason of his refusal. He finds that one of defendants requested plaintiff to commence shipping boards and to leave the matter of the dispute as to price until after Mr. Lord, plaintiff’s partner, now deceased, should get well The defendants insisted that they could purchase these boards at less than the contract price. The plaintiff did not believe that they could do so. They wished him to ship the boards at the less price and he refused. Or they desired him to ship them, leaving the price for future arrangement. This he was unwilling to do.

It appears that in May, 1886, the defendants had received a bill of lumber from plaintiff’s firm with prices charged according to those in the contract Defendants sent it back with lower prices inserted, and with a memorandum that they were offered all the boards they could use for the above prices. The plaintiff’s firm did not accept the proposed reduction.

It may be remarked here that if, as stated by defendants, they were offered all the boards they could use at these lower prices, they could not have suffered any damages by the refusal of plaintiff’s firm to sell at the original price, or even at the lower rate. For if plaintiff’s firm refused to sell at these lower rates defendants had only to buy elsewhere, “all these boards we can use.”

The thirty-eighth is a request to find that, during the canal season, defendants applied to all parties known to be dealing in such boards, but were unable to obtain them.

The memorandam just above referred to is some evidence to the contrary. The testimony on which defendants rely is of applications made in the fall, September, and October, and to parties in Albany and Utica, and not elsewhere. It does not appear that they applied to any dealers in New York, where their own business was, and one firm at least is shown to have dealt in this lumber there. One of the dealers to whom they applied testified that he had an accumulation in the spring and a moderate supply during the season. Another of defendants’ witnesses stated that one of the defendants said to plaintiff, in the early part of September, that the defendants were buying boards all the time at lower prices.

In some other requests the referee was asked to find that the defendants were obliged to substitute spruce or, pine boards in work on vessels mentioned in the bill of particulars, at a higher price, and that they suffered damage thereby. This he refused to do.

On looking at the so-called contracts, under which defendants claim to have suffered this damage, it will be seen that a certain price is named for pine, another for spruce, another for hemlock; the last being the lowest. The contract in question was for hemlock culls. Now since the price to be paid to defendants by the ship owners was governed by the kind of lumber furnished, we see no proof that the defendants suffered damage by furnishing pine and spruce instead of hemlock, and getting therefor a higher price.

In regard to the question of damages, we must observe that early in May the plaintiff’s firm was informed in writing by defendants that they were offered all the boards they could use for the less price of five and one-half and seven cents instead of six and seven and one-half. Whatever might have been the knowledge of plaintiff’s firm as to the use for which the boards were intended, they thus received a notice that the defendants would have no difficulty in obtaining all that they wanted for any purpose.

The appellants state in their brief that in May they demanded of plaintiff to deliver the boards at the reduced prices. But on looking at the words in the testimony which they rely on for this statement we find that the demands were in September, and there is no evidence pointed out of any demand before that time made on this plaintiff.

We have not referred to any evidence, and have not been able to find any, establishing the fact that the market price of these hemlock culls was less than the contract price. One witness states that he sold some to defendants at seven cents, but the size is not specified.

There is some inconsistency in the position taken by defendant. They say first that responsible dealers were ready to sell them such boards at less rates than plaintiff’s contract; then they say that, on the contrary, they were unable to buy such boards of any one. Where were the responsible dealers ?

Or, if we use the phrase market price, how could there be a market price when there were no such boards in the market ?

It is true that possibly defendants in reliance on plaintiff’s contract might have neglected the opportunity of buying from these responsible dealers until their lumber had been sold, and then might have been unable to obtain any except such as plaintiff had. But we do not find the proof of this in the case. Or the defendants might have bought all that could be had of others than plaintiff. After they had done this, it would not be easy to prove a market price ?

The general rule as to damages on an executory contract for the sale of personal property is familiar. The exception is pointed out in Booth v. Spuyten Duyvil R. Mill Co., 60 N. Y, 487. It seems to us that this case does not come within the exception. In the first place it is not established that plaintiff and his partner knew that these boards were for a specific purpose. Defendants were dealers, and sold such boards, and there were no circumstances from which it may be fairly inferred that the parties contemplated a particular rule for estimating the damages.

Next it is defendants’ own claim that there was a market price, or a price at which responsible dealers would furnish the article. The contrary is pointed out in the case last cited. Again we do not see that any satisfactory proof is given of damage suffered by defendants. They furnished more expensive boards, it is true, but it does not appear that they were not paid the full value. The so called contrasts provided for the payment of different prices according to the kinds of lumber furnished. And, with two exceptions, they are not signed by defendants. Whether counter-parts were signed by them does not appear. If the defendants in fact were, under these so called contracts, paid for the pine and spruce lumber only the price of hemlock, that fact should have been proved.

Furthermore it appears that defendants sold hemlock culls between April and December to persons other than the owner or captains of the vessels .mentioned in the so-called contracts. So far as they did this they deprived themselves of the means of performing the so-called contracts. And this fact further shows that the agreement with plaintiff and his partner was not made solely with a view to these so-called contracts but for general purposes of business.

We should further notice that the testimony of the plaintiff himself, which the referee might have accepted as the correct story, shows that after sending the first load of lumber and receiving the statement on the bill, which has been above referred to, the plaintiff and his partner procured another boat for the purpose of shipping more boards to defendants and telegraphed them of this; and that defendants did not answer. This testimony, to which we only refer briefly, might have satisfied the referee that the defendants did not desire any more of the lumber. For by the agreement, as proved by defendants, plaintiff and his partner were to “ Ship loads as ordered.” And the testimony of plaintiff, if correct, would show that there was no order until the conversation in September.

From an examination of the evidence presented on the appeal we think the judgment should be affirmed, with costs.

Landon and Putnam, JJ., concur.  