
    Hartman and Eberspacher, Plaintiffs and Respondents, v. Proudfit, Defendant and Appellant.
    1. Where the statement contained in a Referee’s report of the facts found by him, diifers from his specification “of the facts found by him,” inserted by him in the case on settling it under sections 272 and 268 of the Code; the latter will be deemed to contain a true statement of the facts as actually found.
    
      2. If his conclusion is erroneous, assuming the latter facts to be as he has found them, a new trial must be granted.
    3. The statements contained in the report will not be resorted to, to impute thereby a meaning to the language employed in the case as settled to declare what facts were found, which could not be given to it according to the natural construction of such language.
    
      4. Where, by a contract between the plaintiff and defendant, the latter is to pay in part, for work which the former contracts to perform, by giving, when the work is completed a bond and mortgage for a specified sum “ to run one year;” the plaintiff cannot, in an action brought before the year expires, recover such sum, unless the defendant, after the work has been duly .completed and before suit brought, has refused to give or is in default for not having given a bond and mortgage for the sum required by the contract.
    (Before Bosworth, Ch. J., and Robertson, J.)
    Heard, February 17th;
    decided, February 25th, 1860.
    This is an appeal by the defendant from a judgment entered against him on the report of Benjamin D. Silliman, Esq., as Referee.
    The action was commenced on the 17th of March, 1857.
    The complaint states five separate causes of action: The first cause of action stated, is upon a contract dated September 9, 1856, by which the plaintiffs agreed “to do all the mason work and furnish all the materials according to plan and the specifications hereto annexed for the lager bier vaults to be built on two lots, ” &c., for $5,500, “ all the work to be done in a good, substantial and workmanlike manner,” * * to be completed by the 21st of November next. Three payments, amounting to $3,000, were to be made as the work progressed, and “a bond and mortgage for $2,500, to run one year,” was to be given when all the work was finished and ready for use. The specification annexed to and forming part of the contract contains this clause, viz.: “And if anything is left out in this specification that is required to make the vaults and cellars a good and substantial lager bier building, the mason does agree to do it.” The complaint alleges full performance by the plaintiffs, payment of $3,500, by the defendant in cash on account of it, and a refusal to give a bond and mortgage for the remaining $2,000, and claims a right to recover the $2,000, with interest from the 1st of December, 1856, when, as it alleges, the defendant was requested to execute such bond and mortgage and refused.
    
      The defense to this cause of action is that the plaintiffs did not perform this contract on their part, but on the contrary failed in many essential and specified particulars to do so, and the answer insists that only $3,000, cash, was paid on this contract, and that the other $500 of cash paid, was paid on another contract, viz.: on a contract dated November 10, 1856, between the plaintiffs and the defendant, by which the former agreed to build “ a brewery and stable ” for the defendant, and that defendant had a right even if there had been full performance by the plaintiffs, to give a mortgage for $2,500.
    The Referee, among other things found, according to the statement of the facts found by him, as he inserted them in the case on settling the same.
    “ 2d. That the plaintiffs performed the work and furnished the materials required of them by said contract.”
    
      “ 3d. That the work done by the plaintiffs did not, in its results, produce a good and substantial building; that the walls and vaults were defective, the former bulging very much and requiring external braces to support them, and that the building was not such a one as the defendant had in view when he made the contract with the plaintiffs."
    4th. That the defendant paid $3,500, in cash, and that $500 of it was on account of the sum for which the bond and mortgage were to be given.
    6th. That the defendant had not paid the remaining $2,000, or executed a bond and mortgage to secure it, but had refused to do either.
    As a conclusion of law on these facts, he held that the plaintiffs were entitled to recover the $2,000, with interest from December 1st, 1856, that being the day of the defendant’s refusal to execute such bond and mortgage.
    It was not found that the defendant waived full performance, or accepted of the work as being done according to the contract. The Referee’s “report,” purports to contain a statement of the facts found, and of his conclusions of law thereon, and also contains a brief statement of some of his reasons for the conclusions therein expressed. On settling the case, the Referee inserted at the end of it, a formal specification of the facts found, and of his conclusions of law. Some of the matters stated in the one, which are not stated in the other, are noticed in the opinion of the Court.
    The moneys paid by the defendant to the plaintiffs, amounting in all to $3,500, consisted in part of a payment of $1,000 made on the 15th of November, 1856. The defendant insisted that only $500 of this payment was made on the first contract; and that the other $500 of it, was made expressly on account of the contract of November 10th, 1856. The evidence affecting this question is sufficiently stated in the opinion of the Court.
    During the trial, two paper writings were produced by the defendant dated December 23d, 1856, one being a copy of the other, purporting to be contracts between the defendant of the first part, and the plaintiffs of the second part, relating to the aforesaid two contracts; and they contained various recitals and covenants. One of these was signed by Hartman only, and the other by the defendant. It was proved by S. E. Cowdrey who drew them, that when thus executed, they were delivered to him in escrow; to the end that he might deliver that signed by the defendant to the plaintiffs, when that signed by Hartman had been signed by Eberspacher. That he was induced to lend the latter on a promise that it should be returned to him; and that the person so borrowing it had never returned it.
    The Referee allowed these papers “ to be read as admissions by a party to the action, but refused to allow them to be read as evidence of a new contract.”
    To this decision, the defendant excepted.
    Some part of the contents of these papers is stated in the opinion of the Court.
    
      J. S. Lawrence, for the appellant.
    
      H. R. Cummings, for the respondents.
   By the Court—Bosworth, Ch. J.

The meaning of the second and third findings of fact, is not so perspicuous as to place it beyond criticism.

All that the second necessarily imports, is, that the vaults were built of the size, in the form, and of the materials required by the contract. It does not state that the plaintiffs did this work in a “ good, substantial and workmanlike manner.” This they, in the body of their contract, agreed to do.

As the third finding states, that “ the work done,” “ did not produce a good and substantial building;” “that the walls and vaults were defective, the former bulging very much and requiring external braces to support them; ” and as the facts found suggest no cause for these marked defects, except “the work done,” the only meaning which we can attach to these two findings is, that the work was defectively performed; and that in consequence of such defective performance the walls bulged and required external braces to support them.

The Referee’s report contains some statements which, it is claimed, show that the second finding was designed to declare as a fact that the work was really done in a workmanlike manner, and that whatever was unsubstantial or defective was the fault of the plans; and not of the manner in which the work was executed.

Even if this construction of the report be correct, we are of the opinion that if its statement of the facts found, differs from that inserted in the case by the Referee on settling it, as required by sections 272, [227,] 268, [223,] of the Code; either in that the one specifies some facts not found in the other, or in that some of the facts are stated differently in the one from what they are in the other, the court should look at the facts stated in the case by the Referee on settling it, as the facts actually found by him.

In that part of the “ report ” which professes “ to find and report ” the facts proved, there is no statement either in form or substance corresponding with the third finding contained in the “case” itself. In the commencement of the “report” conclusions are stated substantially corresponding with the third finding; and in that part of the “ report ” the Referee, after specifying the positions taken by the parties as to the cause of the defects, and commenting upon the evidence given in relation to them, remarks, that he thinks, “on the whole, that the plaintiffs have shown a substantial compliance with the contract on their part.”

We think the “report” cannot be resorted to for the purpose of imputing, by the aid of its contents, a meaning to the finding of facts inserted in the case on settling it, which could not be given to them by any natural construction of the language in which they are stated.

If these views are correct, then it follows that, as their contract in terms required them to do the work in a good, substantial and workmanlike manner, and especially as the specification forming a part of the contract declares that, “ if anything is left out in this specification that is required to make the vaults and cellar a good and substantial lager bier building, the mason agrees to do it,” and inasmuch as it is found that the building, as the plaintiffs left it, ‘‘was not a good and substantial building,” but, on the contrary, the walls were so defective that they bulged and required external braces to support them, the plaintiffs cannot recover without the further fact being found that the work was done in a good, substantial and workmanlike manner, and that vaults good and substantial could not be made by conforming to the plans and specifications which the plaintiffs were bound to follow.

Whether a party who agrees to erect a building according to a designated plan and specifications, and to make it good and substantial, but fails to erect one which can stand without external braces to support it, can recover, if he has conformed to the plans and executed his work well, is a question which it is unnecessary to decide. For, assuming that he can, we are of the opinion that the Referee’s conclusion of law, upon the facts which he has found, is erroneous. We are not satisfied with the Referee’s finding that the $8,500 of cash paid was all paid on this contract. Whether it was or not, depends upon the question whether the $1,000 paid on the 15th of November, 1856, was wholly paid on this contract, or whether only half of it was, and the other half on account of “the brewery and stable” which the plaintiffs were erecting under a contract dated the 10th of November, 1856.

Hartman testifies that the payment of $1,000, on the 15th of November, was an overpayment of $500; that “ the defendant said he was able to pay the whole of the amount due on the contract without giving a mortgage; the defendant said the $500 overpaid was on account of the amount coming to us on the mortgage.”

The defendant testified that he never said any such thing; that “Mr. Hartman at that time said he was in want of money, and if I would give him $500, on account of the brewery, he would not ask for more until the brewery was done.” * * “ I gave it to him, and told him it was on account of the brewery.”

The plaintiffs’ receipts for this and the two previous payments were produced. That of October 4th, for $1,000, and that of November 1st, for $1,500, states that those payments are “ on account for building his brewery cellars,” while that of November 15th, for $1,000, states that it is “ on account for his buildings.” The difference in the terms of the receipts, and the phraseology of the last receipt, favor the accuracy of the defendant’s version of the matter. Besides this, the Referee allowed the defendant to read a paper writing, signed by Hartman on the 23d of December, 1856, “ as admissions by a party to the actionand that paper states that the $3,500 was paid “ on account of the said contracts, and of a claim of five hundred dollars for extra work performed on the said building," and that a bond and mortgage for $2,500 was to be given on the completion of the building.

Whether this writing was rightly received in evidence or not, it is unnecessary to determine. (2 Denio, 149.)

It was admitted in evidence as containing admissions of Hartman ; the admissions contained in it were made after the money was paid and receipt given, and if the slightest weight is attached to them, it must be conceded that as the defendant directly contradicted Hartman as to the purpose or account, for or on which the extra $500 was paid, and as the defendant was corroborated and Hartman was not, the Referee’s finding that the $500 was paid on account of the sum for which the mortgage was to be given, is contrary to evidence.

It is not found that the defendant was asked or refused to give a bond and mortgage for $2,500, and unless he so refused, no action would lie before the expiration of the year to recover any part of that sum.

We think the Referee was right in holding that no such agreement was made as the paper writings of the 23d of December, 1856, import.

The papers were not to be delivered until the one signed by Hartman was signed by his partner also. I think Mr. Cowdrey held the papers in escrow and quo ad hoc, as a stranger to all of them. While so held, the paper signed by Hartman was not his agreement, nor an agreement of his firm. (2 Denio, 149.)

But I think a new trial should be granted on the grounds that the facts found do not entitle the plaintiffs to recover on the first cause of action; and that the finding that the overpayment of $500 was made on account of the $2,500, to be secured by the bond and mortgage of the defendant, is contrary to evidence.

Ordered accordingly.  