
    Samuel Frost, Plaintiff and Respondent v. Albert Smith, Defendant and Appellant.
    1. When an appeal is moved in its order on the calendar, the court will presume that the case therein has been settled, unless moved to interfere, on affidavits alleging the contrary.
    2. On appeal from a judgment entered on the report of a referee, the appellant may be heard on exceptions taken to the referee’s conclusions of law upon the facts found, although the printed case does not contain any of the •evidence.
    3. But, in such case, he cannot be heard upon his exceptions ,to the findings of fact. It must be assumed that they are found upon competent and sufficient evidence.
    4. Where a defendant contracts to make, and deliver from time to time, as required, six engines, and he delivers only two, and on request to deliver another refuses, without cause, so to do; the contract may be treated as rescinded, and any moneys advanced to him, over and above the worth or contract price of the two delivered, may be recovered back.
    5. Where in an action to recover such excess and any balance due on general account, the answer admits advances on account, and alleges no defense except that the engines delivered, and other work, &c., performed by defendant, amount to more than all payments and advances made to him; and the judgment for plaintiff is for the actual balance, charging him with all he had received from the defendant, and crediting him with all he had paid, it will not be reversed merely because the referee held that such a refusal as stated in the proposition-(No. 4) was a rescission of not only that contract, but of a subsequent one for the bargain and sale of other two engines, only one of which had been delivered; especially when the case contains no evidence or other matter showing affirmatively that it was error not to credit defendant for the engine not delivered under the last contract.
    (Before Hoffman, Piekkepont and Robektson, J. J.)
    Heard June 14,
    decided June 30, 1860.
    Appeal by the defendant, from a judgment entered on the report of George W. Stevens, Esq., as referee. This action was commenced the latter part of January, 1859. The printed case contains the. summons, complaint, reply, order of reference, the referee’s report of his findings of fact and conclusions of law, (dated December 24, 1859,) the defendant’s exceptions, the judgment entered on the report, and the notice of appeal. It does not contain any evidence given on the trial.
    
      The complaint alleges that, at divers times, between 9th September, 1856, and 5th December, 1851, Benjamin Frazee, having certain dealings and an account with defendant, paid on said account, and lent and advanced to defendant,various notes and sums of money, and the defendant made and delivered to said Frazee various machines, and other articles, some of which were defective; and that there was a balance due to said Frazee, of $2,240.41, besides interest. That this claim was assigned to plaintiff.
    The answer denies most of these allegations, and alleges that the defendant made, sold and delivered to Frazee, various articles of machinery, and other articles, and paid large sums of money to and for Frazee, amounting altogether to the sum of $5,614.01; and that the various notes and sums of money mentioned in the complaint, were paid on account of this—and claims a balance due to defendant of $1,285.19, besides interest.
    The referee finds, as facts:
    1. That a contract was made between Frazee and defendant, on 2d September, 1856, by which defendant was to make for Frazee six small steam engines, at $212.50 each, and that Frazee was to pay the cost of making the patterns.
    2. That defendant made the patterns, which were worth
    $122.88.
    3. That defendant made and delivered the said engines.
    4. That defendant sold and delivered to Frazee fixtures for the engines, to the value of $210.
    5. That, in January, 1851, a further contract was made between defendant and Frazee, for six other engines, to be delivered to Frazee from time to time, as he should require the same, at $225 each; that Frazee should pay defendant for altering the patterns for the said engines.
    6. That defendant altered the patterns, and that the alteration'was worth $16.25.
    1. That defendant made, constructed and delivered two of the said engines to Frazee.
    8. That, in January, 1851, defendant bargained and sold to Frazee two other engines, at $400 each, and on 5th March, 1857, delivered one of them to Frazee.
    9. That, on 5th March, 1857, defendant sold and delivered to Frazee fixtures for said engine, of the value of $58.33.
    10. That, between 2d day of September, 1856, and March, 1857, defendant performed work for Frazee, to the value of $172.30.
    ■ 11. That one of the first six engines was defective, and the difference in value between it and a sound one was $162.50.
    12. That, between 2d September, 1856, and 11th March, 1857, Frazee paid defendant $1,987.
    13. That Frazee delivered to defendant one promissory note, November 18, 1856, for $550; one January 17, 1857, for $471.45 ; one April 1, 1857, for $550, and one May 7, 1857, for $400—which notes were paid by Frazee.
    14. That, on 29th June, 1857, defendant delivered his note to Frazee for $550, to take up Frazee’s note of April 1, 1857. That defendant paid this note.
    15. That, on 11th March, 1857, Frazee delivered to defendant a draft of one Doolittle, for $846.60, to sell; that same was sold for Frazee for $778.84, and defendant paid to Frazee $450, and retained the balance, $328.84.
    16. That, in January or February, 1858, Frazee demanded of defendant one of the engines mentioned in 5th finding of fact, and defendant refused to deliver the same.
    17. That, on 16th May, 1857, Frazee delivered to defendant a note for $381.24; which note was not paid by Frazee, and that the consideration therefor failed.
    18; That, on December 18, 1858, Frazee assigned his claim to plaintiff.
    And the referee finds, as matter of law:
    1. That the refusal of defendant to deliver to Frazee the engine demanded in January or February, 1858, operated as a rescission of the contract to deliver the residue of' the engines mentioned in the fifth finding of fact, and of the second of the engines mentioned in the eighth finding of fact; and, thereupon, Frazee became entitled to recover all sums paid and advanced by him, over and above the cost and value of the engines, &c., furnished by the defendant; and that there was due to Frazee, over and above all the work, machinery and materials delivered by defendant, $1,185.03.
    2. That plaintiff, as assignee of Frazee, is entitled to judgment for $1,185.03 and interest from February 25, 1855, $152.92—making in all, $1,331.95.
    The defendant excepted to the findings of facts and conclusions of law separately, and appealed from the judgment entered on the referee’s report.
    
      R. Andrews, for Appellant.
    I. This action was an action for money and notes lent and advanced, and plaintiff could recover therein for no other cause of action.
    II. The judgment is a judgment for a breach of certain contracts to deliver certain engines, and which contracts are not set up or alluded to in the pleadings, nor is any • breach of such contracts set up or claimed.
    III. The demand mentioned in the sixteenth finding of fact, was a demand of b.ut one engine of the lot stated in the fifth finding, and a refusal to deliver that one was not • a refusal to deliver all the lot, or a breach of the contract to' deliver the engines.
    IY. The demand and refusal to deliver one of the engines mentioned in the fifth finding, was not a demand or refusal to deliver the engines mentioned in the eighth finding.
    Y. The contract mentioned in the eighth finding was a separate and distinct contract from the contract mentioned in the fifth finding; and, to maintain an action for the breach of that contract, there must have been a demand of the engines there contracted for, and a failure to deliver.
    YI. The demand made for one engine of the lot of six, mentioned in the fifth finding, did not operate as a rescission of the contract to deliver the residue of the engines mentioned in that finding. It was, at most, a breach' of the contract to deliver that one engine-, and that alone. At all events, it could not operate as a rescission of the contract to deliver the engines mentioned in the eighth finding, and was no breach of that contract.
    VII. The referee finds the balance due to Erazee to be $1,185.03, and erroneously finds that plaintiff, as his assignee, is entitled to recover $1,185.03 and interest. The. judgment is erroneous, and should be set aside.
    
      W. R. Stafford, for Respondent.
   Pierrepont, J.

—It must be assumed that the facts are found in accordance with the evidence. The conclusions of law are supported by authority so far as relates to the facts stated in the fifth finding. (Raymond v. Reamard, 12 J. R. 274.)

As the suit was to recover the moneys which the plaintiff had paid and advanced to the defendant at his request, and as he, the defendant, was credited with all to which he had any title, the judgment must be affirmed, with costs.

Hoffman, J.

—It is insisted on behalf of the respondent (the plaintiff,) that we cannot hear this appeal at all; that the record does not entitle the appellant to review even the conclusions of law of the referee. The case having been referred to a referee to hear and decide all the issues, he made his decision, on which judgment was entered, in favor of the plaintiff. We have before us a record entitled, case on appeal, containing the pleadings, order of reference, the referee’s finding of facts and conclusions of law, exceptions of the defendant comprising objections to both, the judgment and notice of appeal. It is insisted that the appellant cannot question any conclusion of law, because there is no case containing all the evidence before us, and no evidence of its having been settled.

We are entitled to presume that it was settled.

I have always understood that a case or bill of exceptions, as it may be termed, with the findings of fact, judgment, and exceptions to the conclusion of law, brings the case for review as to the latter, properly before the general term. The exceptions as to matters of fact are discarded, as the court has no evidence to judge of them. All exceptions to rulings, during the progress of the trial and before decision, are also excluded. There is, nakedly, a statement of facts like a special verdict, with a conclusion of law upon such facts, and the exceptions to this, the appeal brings up for review.

I do not understand any of the cases cited as settling a different rule; (Johnson v. Whitlock, 3 Kernan, 344; Smith v. Grant, 15 N. Y. Rep. 590; Connolly v. Connolly, 16 Howard Pr. Rep. 224; Magie v. Baker, 4 Kernan, 435;) and the last amendment of the Code appears expressly to recognize such a course. “ When a case on appeal shall have been heard and decided at the general term, upon the report of a referee and exceptions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the Court of Appeals.” This is the amendment to section 272, and is made applicable to appeals then pending. (§ 268.)

The question, therefore, and the only question before us is : has the referee drawn a correct conclusion from established and incontestable facts? That the appellant has included exceptions as to matters of fact, cannot prejudice his right to raise this question of law.

There can be no question that the demand of one of the engines provided to be made and delivered by the contract of January, 1857, stated in the fifth clause of the finding, entitles the plaintiff to treat the contract as broken for the four engines not delivered. The engagement was, to deliver them to Frazee, from time to time, as he should require the same. He demanded one, in January or February, 1858, and the delivery was refused. The case of Weston v. Barker, (12 John. Rep. 276,) is a sufficient authority to hold this contract broken, in toto; and that the defendant is not entitled to retain, from the moneys advanced to him by Erazee, the cost price of the four engines not delivered..

But I have had a difficulty in relation to the deduction of $400, which he also has made on account of one engine not delivered under the eighth finding. This states a sale of two engines, at the price of $400 each, in January, 185*7, and a delivery of one on the 5th of March, 185*7. There is no statement of the terms' of this sale, the time of delivery, nor of any demand of the other. The referee considers that the violation of the contract in the 5th clause set forth, amounted in effect to a violation of this independent sale in the eighth clause. I do not see any connection between these contracts, and, beyond a doubt, the finding would be wholly insufficient by itself; and if that was the only contract, to put the defendant into default, (Weaver v. Sessions, 6 Taunton, 154,) at least a proffer of the price and demand should appear. (Dunham, v. Mann, 1 Selden Rep. 508.)

But I think there is a view of the case which meets the difficulty. The complaint sets forth various advances for the defendant in cash, notes, &c.; a defect in two engines delivered, and a demand resulting from the whole of such advances and claim, to the amount of $5,446.29; credit for engines, &c., delivered, work performed &c., to $3,205.82, and judgment demanded for the balance. The answer states the manufacture, sale t and delivery of engines, fixtures, &c., work done, money expended, &c., for Erazee, amounting to $5,614.0*7, and proceeds to say that the moneys and notes set forth in the complaint were paid and delivered to the defendant as part payment and security for such sum, except the Doolittle draft.

With this admission of the sums received from Erazee, the defendant is bound to make good his averment of the liquidation and payment of that amount, by means of advances or work done, or something delivered by him to Erazee, or for his use. He had been paid for the two engines. He should have proved that the other was delivered, or showed something to excuse its delivery, and show why performance was not completed.

Judgment affirmed, with costs.  