
    WILTSIE v. EADDIE.
    September, 1867.
    An exception does not lie to the report of a referee, upon the ground that he has refused to find upon a question of fact other than the issues in the cause.
    
    This court can not review a decision of the court below, affirming the judgment of a referee, on a question of fact, unless he decided without evidence or against all evidenced. 
    
    
      Thomas Wiltsie sued James and William R. Eadie, in the supreme court, alleging that he, the plaintiff, was engaged as a warehouseman, and forwarder on the Erie canal, in 1859; and that defendants employed him to receive at his warehouse, and ship therefrom to the city of New York, a quantity of potatoes, for which they promised to pay him a reasonable compensation. Defendants denied these allegations.
    Conflicting evidence was given upon the question, whether the service was rendered by plaintiff, on his own account, or as administrator of one Butler, and in fulfillment of a contract between Butler and defendants. The referee found for plaintiff ; and the court, at general term, affirmed the judgment on his report. Defendants appealed.
    
      James L. Angle, for defendants, appellants.
    
      W. C. Rowleg, for plaintiff, respondent.
    
      
       Compare Van Slyke v. Hyatt, 46 N. Y. 261; Leffler v. Field, 47 Id. 407; Beck v. Sheldon, 48 Id. 365; Fabbri v. Kalbfleisch, 52 Id. 28.
    
    
      
       In Stratton v. Comfield, (December, 1865) it was held, that this court could not review the decision of a referee where the facts are not found, nor his legal conclusions stated. His statement that certain facts appeared in evidence, and his expression of his opinion on their legal effect, is not enough.
      
        S. V. R. Cooper, for defendants, appellants.
      
        Sidney S. Harris, for plaintiffs, respondents.
      By the Court.—Weight, J.—This case is not in a condition to be reviewed in this court. The appeal is from a judgment entered in an action tried by a referee, and there are no findings of fact or of law. In Otis v. Spencer, 16 N. Y. 610, it was distinctly held that these must be contained in a case settled by the referee, and that this court could not look elsewhere for them ; but here, neither in a case nor in the referee’s reports are they specified. In the first of these the referee determines certain legal questions arising upon facts that he states appeared in evidence before him, without finding that the facts existed. In the second he reports the proceeding had on a subsequent accounting, having come to the conclusion that the defendant should account to the plaintiff, as trustee, under the will of their grandfather. An account is stated, but without the facts being found upon which the statement is predicated.
      It is clear, therefore, as the appeal presents the cause, that there” can be no review, in this court, of the judgment. We can not review the decision of a referee where the facts are not found, nor his legal conclusions, unless stated and properly excepted to. An extraordinary course was pursued on the trial, in stopping midway to take the opinion of the referee on the legal aspects of the case, and subsequently stating an accóunt as upon a reference for that special purpose ; but, notwithstanding this, there would have been no difficulty in having a review of the decision here. Within the time allowed by the Code, a case should have been made and settled by the referee, containing his conclusions of fact and of law, with á proper statement of the questions presented, and the exceptions taken to his rulings on points of law. But nothing of this kind was done ; the defendants’ counsel contenting himself with except, ing to the legal views of the referee upon a state of facts not found by him. As the case is presented by the record we can do nothing else than affirm the judgment.
      All the judges concurred.
      Judgment affirmed.
    
   By the Court.

Hunt, J.

After hearing the testimony produced by the parties, the referee found, as matter of fact, that at the time the potatoes were shipped, the plaintiff was himself engaged in the business of warehouseman and forwarder; that he received and shipped from the warehouse occupied by him, and for the defendants, thirteen thousand one hundred and twenty-seven bushels, and two thousand six hundred and twenty-five barrels of potatoes.

He found the value of the service, and made his report for the amount due to the plaintiff from the defendants upon this theory of the facts.

The defendants ask a reversal of the judgment, on the ground that the referee refused to find specifically upon the question, whether the plaintiff, before he received and shipped the potatoes in question, had information of the existence of a contract between one Butler, then deceased, and the defendants, for receiving and shipping the same potatoes. The question was sharply litigated before the referee," whether the plaintiff received and shipped the potatoes in question, acting as the administrator of Mr. Butler, or whether it was his individual transaction.

The question was pertinent, inasmuch as the defendants .claimed to have paid Butler, in full, for the same service for which the plaintiff sought compensation in this action. As a fact in a chain of evidence against the plaintiff, the testimony embraced in the question upon which the referee was then asked to find, was obviously material. No complaint is made, of the exclusion of evidence, as it was all received and considered by the referee.

The complaint that the referee has not found specifically upon the question suggested, is not well taken, and for two reasons : First, the referee is required to find and report upon the issues only, and not upon the evidence. Code of Pro. § 273. He must “ state the facts found by him.” Thus, he was bound to determine and report upon the question, whether the parties in this action entered into the contract set forth in the complaint. That was the precise issue before him. • But he was not bound to say whether he believed the statements of a particular witness, or what his decision would have been if he had believed him, or disbelieved him. He was not bound to “state” whether a particular link in the chain of the evidence o'f either party existed or was wanting. Such is the character of the complaint now under consideration. As an independent question, it was not of the least importance whether the 'plaintiff was aware that a contract for the shipment of potatoes existed between the defendants and the deceased. It was only important as bearing upon the question in issue, viz : whether a contract existed between the parties to the action, as set forth in the complaint. The referee has found, distinctly, upon that point, that such a contract did exist. That was, itself, a question of fact; and he further found that the service sued for was not rendered in fulfillment of Butler’s contract. He is not called upon to find or explain the means and processes by which he arrived at that conclusion. "When the referee decided and “ stated ” that the contract was made between the parties to this action and the service rendered was in fulfillment of that contract, he decided and “stated’’all that was necessary on that branch of the case.

But again : The question referred to the referee for his decision was a question of fact, and can only come before this court for its consideration, when the judgment of the referee has been reversed on a question of fact, and the order of reversal so certifies. Code of Pro. § 272. In the present case, the judgment of the referee was affirmed.

If the point of fact which, it is complained, was not decided, had been upon the main issue, it would not have been within our power to review it.

Under such circumstances, we can only review the decision of the general term, when the referee decided without any evidence, or against all the evidence on the point. In the present case, the plaintiff expressly denied any knowledge of a contract between the defendants and the deceased, except as to the potatoes raised on Bullen farm.

Each of these reasons is conclusive against the appellants’ claim ; and they furnish an answer to the other points of the appellants, to wit: that the referee declined to report whether both parties supposed that Wiltsie was acting in behalf of the estate, and also in relation to the receipt of the seven hundred dollars, and the application of the same; and also as to what took place on the settlement of the accounts of the plaintiff and administrator of Mr. Butler.

These are questions of fact, and questions of evidence simply. The referee found that a contract was made between the parties to this action, by the service which was rendered by the plaintiff for the defendants, and which service was rendered by him in his individual capacity, and not as administrator. He properly held that the law implied a promise, from these facts, that the defendants would pay to the plaintiff the value of the service rendered.

The judgment should be affirmed.

All the judges concurred.

Judgment affirmed, with costs.  