
    Joseph W. Richardson, Plaintiff and Respondent, v. Wm. T. Dugan and Jennison A. Leland, Defendants and Appellants.
    1. Where a referee’s report does not, in terms, specify a finding upon each of the material allegations in the complaint, but finds that there is “due to the plaintiff by the defendants,” a specified sum. for which judgment is ordered, the report, on an appeal from the judgment, will not be disturbed, where there is nothing in the evidence or case repugnant to the inference that the referee did find all the allegations of fact essential to a recovery by the plaintiff, in his favor.
    2. Where, on an allegation that the defendants owned a vessel, and employed and hired the plaintiff to go on board of her as master on a designated voyage, and that under such employment, he served as master on such voyage, the report states that the defendants held the legal title, but as security only, and had control of the voyage, and that the plaintiff went as master with their assent, and obeyed their orders, and was paid by them for his services, in part, as such master, and that there is “ due to the said plaintiff by the defendants” the sum of $1,262.75, for which he “is entitled to recover judgment herein against said defendants,” it will be intended on an appeal from the judgment, that the Referee found that the plaintiff was hired by the defendants, although the report does mot in terms so state, if upon the evidence contained in the case, a finding to that effect would not be disturbed as unwarranted.
    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Heard, April 5;
    decided, May 25, 1861.
    
      Appeal by the defendants, from a judgment entered on the report of Livingston Livingston, Esq., as Referee.
    The complaint alleges (inter alia) that the defendants owning the bark or vessel “Mary and Jane," in April, 1853, employed and hired the plaintiff to take charge of, and serve as master of said vessel, on board thereof, for the said voyage, (a voyage from Hew York to Montevideo, and Buenos Ayres, thence to such other places as should be thereafter determined upon, and back to the United States,) for such price or wages as his services were reasonably worth; ” and performance of said contract by the plaintiff; and claims a balance of $1,264.80 to be due, for which, with interest, it prays judgment.
    The answer denies the allegations in the complaint, and then avers that the firm of E. Richardson & Co., (composed of E. and Wm. P. Richardson,) owned the vessel, and “ employed the plaintiff, and that having received a loan or advance from defendants on said vessel, the title of the vessel was put in defendants’ name as security, and they acted in the business of said vessel, and her cargo and freight, solely as the agent of the said firm.” The Referee’s report is as follows, viz.:
    “I find and report as matters of fact: That in the month of April, 1855, Edward Richardson and William P. Richardson were the owners of a vessel called the Mary and Jane, then lying in the port of Hew York; and in the latter part of April, 1855, employed the plaintiff as master of said vessel, for a voyage to South America. That the defendants made advances to the said Edward Richardson and William P. Richardson to a large amount; and for the purpose of securing to the defendants such advances, the said Edward Richardson and William P. Richardson, in the latter part of April, 1855, while said vessel was lying in the port of Hew York, made an absolute bill of sale of said vessel, in form, to the said defendants, but which was in fact a mortgage on said vessel to secure such advances; and at the same time to further secure the said defendants for such advances, the said Edward Richardson and WilHam P. Eiehardson consigned to the defendants the cargo of lumber then on board the said vessel, with authority to sell same in port, or to send same to sea.
    “ That the defendants, after receiving said bill of sale of said vessel, and consignment of cargo, were mortgagees in possession of said vessel and cargo; and that the plaintiff, with the assent of the defendants, continued in charge of said vessel, and was recognized and treated as the master of said vessel by said defendants; and that said plaintiff, as such master, after the giving of said bill of sale and consignment of cargo to said defendants, performed the voyage and did the services as alleged in the complaint herein, and as such master accoxmted to the defendants, as such mortgagees in possession, for the proceeds of the sale of the outward cargo, and out of the proceeds of sale of such outward cargo, plaintiff purchased, by the direction of said defendants, an intermediate cargo, and accounted to the defendants for the proceeds of the sale of such part of the intermediate cargo as was sold; that the said defendants collected all the freight earned by said vessel on said voyage; that the outward cargo of said vessel was consigned by defendants to their own agents, and the vessel, on her retxxrn voyage, was consigned to the said defendants; that the defendants after the retxxrn of said vessel, sold the said vessel, and received the purchase money therefor; that said defendants paid the expenses of said- vessel on said voyage, including the wages of the crew, and paid the plaintiff on account of the services rendered by him as such master, after his return, the sum of two hxxndred dollars. And I find and report, that the said Edward Eiehardson and William P. Eiehardson were in fact the owners of said vessel, and the defendants mortgagees thereof. That the only interest the said Edward Eiehardson and William P. Eiehardson had in said vessel, cargo, freight and proceeds of said voyage, was in such balances as might remain after the defendants had realized therefrom sxxfficient to pay them the advances made by them as aforesaid, and the expenses of said vessel in making said voyage; and the defendants had a right to, and did receive, the proceeds of the sale of the vessel, cargo and freight, as mortgagees in possession of said vessel. That said plaintiff performed services as such master, from the first day of May, 1855, to the eleventh day of April, 1856; and that his services as such master during that time were reasonably worth the sum of one hundred and twenty-five dollars per month, amounting in all to the sum of $1,420.82. That the said plaintiff disbursed money on account of the expenses of said vessel, and that on the eleventh day of April, 1856, there was due to the said plaintiff, for his services as such master, the sum of $1,220.82, and also the sum of $41.93 for money disbursed by him as such master, for the expenses of said vessel, over and above the amounts received by him from said defendants, making in all the sum of $1,262.75. That the defendants on the eighth day of April, 1856, paid to the plaintiff the sum of $253.13 on account of his services and disbursements, instead of after the eleventh day of April, 1856, as stated in said complaint, and leaving due to the said plaintiff on the eleventh day of April, 1856, the said sum of $1,262.75. And I find and report that there is now due to the said plaintiff by the defendants, the said sum of $1,262.75,- with interest thereon from the eleventh day of April, 1856, and which sum, with interest thereon as aforesaid, up to the date of this my report, amounts to the sum of $1,667.86. And I find and report, as a conclusion of law upon said facts so found, that the plaintiff is entitled to recover judgment herein against said defendants for said sum of $1,667.86, besides the costs of this action.
    The defendants excepted to the decision of the Beferee, and appealed from the judgment entered on the report.
    
      Charles Donahue, for the appellants.
    S. D. Dillaye, for the respondents.
   By the Court—Bosworth, Ch. J.

The Beferee has found most of the material facts alleged in the complaint, to be as therein stated. They cannot be disturbed as being contrary to the evidence, His findings do not determine in terms, the truth or falsity of some few of such facts.

The complaint alleges the defendants to be owners of the vessel. The Beferee finds that they held the legal title, but as security only, and that they were mortgagees in possession of the vessel and cargo, and that the plaintiff as master, by their direction, purchased with the proceeds of the cargo of the outward voyage, an intermediate cargo; that the defendants received the proceeds of such part of it as was sold, and collected all the freight earned by the vessel on the voyage in question. They therefore held the legal title, and had control of the voyage and were owners of the vessel, pro hac vice.

The complaint alleges that the defendants hired the plaintiff to go as master of the vessel for the voyage, and that he went as master under such hiring. This is denied by the answer.

The Beferee does not in terms state how he determined these allegations of fact. There was direct and positive testimony in relation to the question of an actual hiring of the plaintiff by the defendants.

The Beferee finds, that after the defendants became mortgagees in possession, the plaintiff continued in charge of the vessel with their assent and was treated by them as master; that he accounted to the defendants as mortgagees in possession, purchased by their direction an'intermediate cargo, that they sold the vessel after her return and received the purchase money, as well as collected all the freight for the voyage, paid the expenses of the vessel on the voyage, including the wages of the crew, and paid the plaintiff after his return, on account of the services rendered by him as such master, the sum of $200; that the master’s services were reasonably worth, $1,420.82; “ that there is due to the said plaintiff by the said defendants,” the sum of $1,262.75, with interest from April 11, 1856, amounting in all to $1,667.86. All these matters are found as matters of fact.

In order to have found, as a fact, that the defendants owed the plaintiff, for his services as such master, the $1,262.75, and interest, he must necessarily be deemed to have found adversely to the allegations in the answer that E. Bichardson & Co., the mortgagors, employed the master, and that the defendants acted in the business of said vessel and her cargo, and her freight, solely as the agent of the said firm.

According to the decision of the Court of Appeals in Grant v. Morse et al., (22 N. Y. R., 323,) and in the language of the opinion in that case, “as the Beferee did not draw any such conclusion,” (as is consistent with the truth of these allegations,) “it is not for the Court to draw it for him.” * * “The party appealing must make his case and have it settled, with such a statement of facts, as will show necessarily, that the law is in his favor. If he does not, every intendment not absolutely unreasonable .in itself, will be against him.” * * * “The Beferee’s general conclusion that the plaintiff was entitled to the judgment recovered, implies that he had a different view of the evidence; ” (that is a view adverse to the defeated party,) “because we are not to presume that he erred in the law.”

When it does not appear, by the terms of the report, or by the case, that the Beferee has refused or was requested to report more precisely than he has done, in respect to :any material allegations embraced within the issue, the Court is left to infer that the general conclusion of the Beferee, as contained in his report, did involve a finding by him, although not in terms expressed, upon every material allegation ,• and the intendment must be, (nothing in the case indicating the contrary,) that he found in favor of the party whom he held entitled to recover.

Upon the facts stated in the report of the Beferee, nothing •being proved to impair their legal force and effect, the .plaintiff would be entitled to a peremptory instruction .that he was entitled to a verdict. (4 Hill, 177 ; 6 id., 218.)

And if the report had, in terms, found the truth of the allegation in the complaint of an actual hiring of the plaintiff by the defendants, the Court could not have set it aside as contrary to the evidence.

There is a direct conflict between the witnesses testifying in respect to this matter. But the fact of actual hiring was sworn to, explicitly—what the truth was, was purely a question of fact. Its determination falls within the province of a jury; and in this case devolved upon the Referee, the substitute for a jury agreed upon by the parties. It must be intended that the Referee found it in favor of the plaintiffs.

Our attention is not directed by the appellant’s points to any exception taken during the trial, nor was there any called to our attention upon the argument.

The judgment should be affirmed.

Ordered accordingly.  