
    Egisto P. Fabbri et al., Respondents, v. Martin Kalbfleisch et al., Appellants.
    (Argued December 23, 1872;
    decided January 21, 1873.)
    Upon appeal in an action tried by a referee, where the case does not show a request for the referee to find any facts in addition to those stated in his report, this court will not look into the evidence to ascertain whether facts were proved which, if found, would have defeated or limited the recovery.
    In the absence of any provision in the contract or of any circumstances excluding it, contracts between citizens for the payment of money refer to the ordinary and usual currency in which business is transacted, and a reference in a contract to the cost of a commodity, unexplained, will be deemed to refer to its cost in the same currency.
    
      Accordingly,—Held (Q-bovbb, J., dissenting), that where plaintiffs contracted to import, for defendants, nitrate of soda for costs and charges, with three and a half per cent, commissions and brokerage, on entire costs, delivered in New York, duty paid, plaintiffs had the right to charge the currency value at the time of payment, of the gold paid to make the purchases and for duties, and to charge commissions in currency upon the amount of costs and charges thus ascertained.
    Appeal from judgment of the General Term of the Superior Court of the city of Kew York, modifying and affirming, as modified, a judgment in favor of plaintiffs, entered upon the report of a referee.
    This action was brought to recover an alleged balance of account due them for advances and commissions for importations of a quantity of nitrate of soda, made by them for defendants.
    
      The contract between the parties was evidenced by two letters, one from defendants to plaintiffs dated ¡November 10, 1863, and one in answer from plaintiffs to defendants dated ¡November 11, 1863; by which it was agreed in substance that plaintiffs should import for defendants nitrate of soda from the west coast of South America for costs and charges, tvith two and a half per cent commission and one per cent brokerage on the entire cost, delivered in ¡New York, duty paid. Plaintiffs made several importations under the contract ; gold was advanced and used by them in making the purchases for duties. Some of their disbursements were paid in currency. Their method of keeping their accounts with defendants and the questions arising thereunder appear in the opinion.
    
      Joshua M. Van Cotb for the appellants.
    The rights of plaintiffs under the contract are that defendants shall pay in coin that which plaintiffs advanced in coin, and in currency what they advanced in currency. (Knox v. Lee, 11 Wall., 682; Butler v. Howitz, 7 id., 258; Bronson v. Rodes, id., 229; Dewing v. Sears, 11 id., 379; Kellogg v. Sweney, 46 N. Y., 291; Chrysler v. Renois, 43 id., 209; Independent Ins. Co. v. Thomas, 104 Mass., 192; Warren v. Franklin Ins. Co., id., 518; Commonwealth v. Hampt, 10 Allen, 38.)
    
      George Wales Loren for the respondents.
    Evidence of custom in respect to the calculation of commission in gold and in currency was proper. (Gibson v. Culver, 17 Wend., 305, 308; Rushforth v. Hadfield, 7 East, 225; S. C., 6 id., 525; 2 Phil. on Ev. [4th ed.], 729, 730.) Since the enactment of the legal tender act two descriptions of lawful money are recognized, and both made legal tender. (Rodes v. Bronson, 7 Wall., 251; Rankine v. Demott, 61 Penn., 263; Millard v. Taylor, 8 Wall., 568,574.) Plaintiffs were entitled to state in their accounts in currency values the amounts paid in gold. (Rodes v. Bronson, 7 Wall., 229 ; Butler v. Howitz, id., 261; Rankine v. Demott, 61 Penn., 263; Rodes v. Bronson, 34 N. Y., 656; 2 P. F. Smith, Penn.)
   Andbews, J.

The facts found by the referee sustain his conclusion of law, that the plaintiffs were entitled to recover of the defendants the sum for which judgment was awarded to them.

The party who seeks to reverse, in this court, a judgment rendered upon the report of a referee, upon the ground that the judgment is not warranted by the facts proved, must procure such a finding of facts as will show that the judgment is erroneous. (Van Slyke v. Hyatt, 46 N. Y., 261, and cases cited.)

The defendants did not request the referee to find any facts in addition to those stated in his report, and no application was made for a resettlement of the case, and we cannot look into the evidence to ascertain whether any facts were proved which if found would have defeated or limited the recovery.

The principal question in the case was whether the plaintiffs were) under their contract with the defendants, entitled to reimbursement, for advances made by them, in the currency value of the gold used in the purchase and importation of the nitrate at the time when the disbursements were made, and whether their commissions were payable upon such currency value.

The accounts of the transactions were kept by the plaintiffs in currency. They charged the defendants the currency value of the gold, used in purchasing and importing the nitrate, on the day when the transaction occurred, and they credited them for gold payments at their currency value when the payments were made.

Accounts were rendered from time to time by the plaintiffs to the defendants in which the currency cost of the importation as thus ascertained was stated, and upon which cost the commissions stipulated in the contract were charged.

The defendants insisted that the plaintiffs’ commissions were chargeable only in gold on the gold cost of the commodity, or in its equivalent in currency at the time of its delivery to them in the city of hfew York. .

The contention in the case arises from the fact of the existence of two legal currencies within the United States, one of which is of fluctuating value, and which in 1864 and 1865, when these transactions occurred, varied greatly in value with reference to gold, the common standard of value throughout the world.

The defendants by the terms of the contract were entitled to a fixed commission upon the cost of the nitrate delivered in Uew York.

There were two modes of representing this cost, one the currency cost ascertained by converting the gold used into currency at the time the disbursements were made, and the other the gold cost, disregarding the amount of currency used in procuring the gold.

If the relative value of gold and paper money had not changed, it would be immaterial to either party whether the cost was estimated in gold or its equivalent in paper.

And it was competent for the parties to make a contract for the commissions with a view to the cost either in gold or paper. In the absence of any provision in the contract or of any circumstances excluding this interpretation, contracts between citizens for the payment of money will be deemed to refer to the ordinary and usual currency in which business is transacted, and so, I think, unexplained a reference in a contract to the cost of a commodity would refer to its cost in the same currency.

In this case the letters perhaps are not decisive as to the meaning of the term cost, upon which the commissions were to be charged; at all events they are not conclusive in favor of the construction claimed by the defendants.

The referee finds that the accounts rendered were correct, and that “ there were no errors, omissions or overcharges ” in them.

The defendants rely upon the fro forma, which was furnished by the plaintiffs as interpreting the contract and as a part of it, and to show that the transaction in respect to the importation was to be on a gold basis, and also upon the manner in which the business was done and payments made as disclosed by the evidence.

But there is no finding by the referee in respect to the fro forma, or as to the other facts by which the defendants claim that their interpretation is so established.

There are no facts found from which we can say that the plaintiffs were not entitled to commissions upon the cost of the nitrate, upon the basis of the currency value of the gold expended for it, nor are the facts found wholly unsupported by evidence.

If there were facts proved, which if 'found would have established the opposite conclusion, they are not before us in such form that the defendants can ask us to consider them.

The judgment should be affirmed, with costs.

All concur, except Grover, J., dissenting, and Folger, J., not voting.

Judgment affirmed.  