
    JAMES C. ANDERSON, Plaintiff and Appellant, v. THOMAS H. WEST, et al., Defendants and Respondents.
    Before Monell, Oh. J. and Curtis, J.
    
      Decided January 4, 1875.
    CONTRACT AND BREACH OF THE SAME.
    The plaintiff agreed to ship the peaches grown by him, to the defendants, during the peach season of 1868, to be sold by defendants ■on commission, at New York, they agreeing to obtain an average price per crate or box, of seven dollars:
    
      Held, That the shipment of peaches by the plaintiff, during the •whole of the peach season of 1868, was a condition precedent to the ■obtaining of an average price of seven dollars per crate or box.
    That the said price was to be an average made upon the sales of the entire crop or shipments during the season; and it could not be claimed that each single shipment or crate, should realize that price. That the failure of the plaintiff to ship his peaches to defendants during the whole of the peach season of 1868, was a breach of the agreement on his part, and deprived him of any right of action against the defendants, to recover any deficiency which arose by reason of the peaches of the plaintiff that were forwarded realizing ■the average price of seven dollars per box or crate.
    The court sitting in review of a judgment entered upon the report of a referee, can only look at the findings, and if they are sustained by the evidence, the judgment must be affirmed, although the findings may be inapplicable to the cause of action stated- in the complaint (Grant «. Moore, 22 N. Y. 323; Lewis ®. Ingersoll, 1 Keyes ■347; Mosher®. Hotchkiss, % Keyes, 161).
    In case the referee fails to find any facts upon the cause of action :set forth in the complaint, further and other findings should be required to be made, or he should be required to decide fully upon the causes of action set forth in the complaint, on motion at special term. The question can not be raised on appeal from the judgment, nor can the general term send the case back to be amended in that respect (Hulee ®. Sherman, 13 How. Pr.JR. 411; Heroy v. Kerr, -8 Bosw. 194; Van Slyke ®. Hyatt, 46 H. Y. 260).
    
      Appeal from a judgment.
    The complaint alleged that the plaintiff, then residing-in the State of Ohio, was solicited by the defendants to ship and consign to them peaches ‘‘during the then peach season” to the city of Yew York. That to induce the plaintiff to make the consignment, the defendants stated that they were well'acquainted with the Yew York peach market, and that a medium or average of the-peaches grown in plaintiff’s locality would readily bring-in the new York market, at least from six to eight dollars, per crate, and that he could rely upon, at least, the average price of seven dollars per crate, for all such peaches as he should ship and consign to them. It was thereupon agreed that a few crates should be shipped, and if favorable prices were obtained, and the plaintiff' should feel warranted in continuing the shipments, that the defendants should receive and sell the peaches-to the best advantage, for a commission.
    It was alleged that the defendants communicated with the plaintiff from time to time, that prices were goodthat his fruit was worth ten dollars, and urging him to send forward his peaches. That the plaintiff' relying upon such statements, continued shipping until about September 10, when the shipments had amounted to one thousand and eighty-three crates, all of which the defendants sold—“and as the plaintiff is informed, at. a greater average price than seven dollars per crate.” That the defendants failed to render promptly accounts of sales, and when they finally rendered them, instead of being credited therein at an average of seven dollars, per crate, the plaintiff was credited with only four dolars and forty-five cents per crate.
    The plaintiff alleged a breach of the agreement by the defendants, and claimed that there was due him on. said shipments upwards of three thousand dollars ; and that by means of the premises he had suffered loss and damage to that amount.
    The answer was a general denial, except that the peaches were merely consigned for sale, and were sold for the best price that could be obtained ; and that the defendants had fully accounted to the plaintiff.
    The action was tried before a referee.
    At the close of the evidence, the referee found the following facts:
    That the plaintiff being a peach grower and shipper, -at Carlisle, Ohio, and the defendants being produce commission merchants, in the city of New York, entered into an agreement by which the plaintiff agreed to ship peaches, to the defendants, during the peach season of 1868, to be by them sold on commission, at said city ; the defendants, in consideration thereof, agreeing to obtain an average price, per crate or box, of seven dollars.
    That such agreement was for the whole peach season of 1868.
    That under such agreement, the plaintiff commenced, on or about August 17, 1868, shipping peaches to the defendants, to be by them sold on commission, and so continued until on or about September 8, 1868, and the defendants sold the same in the city of New York, at an average of four dollars and forty-five cents per crate or box.
    That the plaintiff, being dissatisfied with the returns of sales made by the defendants, ceased forwarding his peaches some time before the peach season of 1868 was over, to wit, on September 8, 1868.
    That by this action of the plaintiff in ceasing to forward his peaches before the peach season of 1868 closed, "the defendants were prevented from performing their part of the said agreement to obtain an average of seven dollars per crate or box.
    And. he found as matter of law:—
    
      That the shipment of peaches by the plaintiff, during the whole peach season of 1868, was a condition precedent to the obtaining by the defendants of the said, average of seven dollars per crate or box.
    That the failure of plaintiff to perform such condition precedent on his part, deprives him of any right to action against the defendants to recover any deficiency which arose by reason of the peaches of plaintiff-not realizing the average of seven dollars per crate or box.
    That the defendants are not indebted to the plaintiff, as alleged in this action, and are entitled to judgment, against said plaintiff for their costs ; and I accordingly so order.
    The plaintiff appealed.
    
      P. Chase, for appellant.
    
      J. H. Van Duzee, for respondents.
   By the Court.—Monell, Ch. J.

I think there-was sufficient evidence to justify the finding of the referee, that the agreement between the parties was for-the whole peach season of 1868. It was so alleged, substantially, in the second paragraph of the complaint, where it is stated, that the plaintiff was solicited by the defendants to consign peaches “ during the then peach season.” That seems to have been the foundation upon which the alleged agreement was made ; and the whole tenor of the testimony is susceptible of no other-construction. Indeed, it would be difficult to determine' or ascertain an average, except from an aggregation of some kind; and the reasonable interpretation of the agreement is, that the average was to be made of the-entire crop of shipments during the season for that kind of fruit. It is not claimed that each crate should realize at least seven dollars, but that the aggregate receipts of all that was to be consigned, should make-such an average.

The plaintiff, in one of his letters given in evidence, indicated, I think, that he viewed the contract as a continuous one. And viewing it in that light, furnished a. reason for stopping the shipments, a reason probably satisfactory to himself, but not sufficient in law, to excuse performance on his part. He says, “ You say, if I had continued to send, I would have made up my losses.. To this it is sufficient to answer, that as soon as your acc’t sales were received, it was at once seen that they varied so widely from the telegrams that no reliance could be placed upon them (while they had also the effect of advancing the price here), and that to-continue shipments upon such unreliable statements-would involve greater losses than those already incurred.”

The contract having been found to be for the entire peach season, its performance by the plaintiff was correctly held by the referee to be a condition precedent to the maintenance of any action upon it; and the evidence was undisputed that the contract, as so found,, was not performed by the plaintiff.

It is evident, however, I think, that the plaintiff’s action was not upon any such contract as was found by the referee. He did not seek to recover the average of seven dollars a crate upon the strength of the defendant’s agreement that the peaches should average that, sum. His dealings with the defendants and treatment of the whole transaction, clearly indicate that he did not-rely upon the agreement, but upon the promise and further agreement that the defendants would inform the plaintiff by daily telegrams of the condition of the peach market, that the plaintiff might regulate his shipments thereby ; and that in pursuance of such promise, they did inform him that peaches were selling at prices far exceeding such average, and that, relying on such information the plaintiff continued the consignments.

It is not necessary to determine whether, upon proof of such a state of facts, the plaintiff could recover. The referee has entirely ignored and disregarded any such cause of action, and treated it as wholly an action upon the alleged contract or guaranty that the goods should average at least seven dollars per crate. And his findings of fact are appropriate to the judgment which he has rendered, and not to a different state of facts or other cause of action.

The court sitting in review, can look only to the findings, and if they are sustained by the evidence, the judgment must be affirmed, notwithstanding the findings may be inapplicable to the cause of action stated in the complaint (Grant v. Morse, 22 N. Y. 823 ; Lewis v. Ingersoll, 1 Keyes, 347; Mosher v. Hotchkiss, 3 Id. 161). In the last case, the court say, it is not competent for the court to explore the evidence to ascertain whether there are not other facts which might have been found by the referee, and if found, would have authorized a discussion of the question suggested by the exceptions taken to the conclusions of the referee.

The referee having failed to find any fact, upon what we suppose was the real cause of the action, further or other findings might have been ordered upon motion to the special term ; or, the referee might, upon a like motion, have been required to decide upon the alleged other and only cause of action. But the question cannot be raised upon appeal from the judgment; nor can the general term send the case back to be corrected in that respect (Hulce v. Sherman, 13 How. Pr. 411; Heroy v. Kerr, 8 Bosw. 194; Van Slyke v. Hyatt, 46 N. Y. 260).

The only exceptions, beside those to the admission or rejection of evidence, were at the close of the evidence, when, upon the defendant’s motion, the referee decided to dismiss the complaint; then follows .as the case slates:

“The plaintiff excepts to the rulings of the referee in dismissing the complaint; plaintiff also excepts to the report of the referee.”

These exceptions are too general (Newell v. Doty, 33 N. Y. 83); and at most, only raise the question whether upon the facts as found, the law has been properly decided (Belknap v. Sealy, 14 Id. 143-148).

There should have been specific exceptions to the conclusions of law.

I have examined the plaintiff’s exceptions during the progress of the trial, and do not find any error in the xu lings of the referee.

The judgment should be affirmed.

Curtis, J., concurred.  