
    LEHIGH STOVE MANUFACTURING COMPANY, Resp’t, v. EDWARD B. COLBY, Appl't.
    Contract—What constitutes breach of.
    Appeal from a judgment in favor of plaintiff, entered in the clerk’s office of' Kings county, upon the report of a referee.
    
      Hector M. Hitchings, for resp’t; L. A. Gould, for app’lt.
   Pratt, J.

The evidence before the referee is not printed, and we must assume that it supports the findings of fact upon which judgment was rendered.

We have, therefore, only to consider whether those findings sustain the conclusion of law, and whether the exceptions to evidence excluded are well taken.

The findings of fact are to the effect that plaintiff entered upon the manufrcture of the goods ordered, and so continued until long after the breach of the contract by defendant in refusing to give his notes for the goods received.

Upon that breach by defendant, plaintiff had a right to decline to proceed further in his deliveries. The referee correctly held that upon such breach of contract the plaintiff was no longer under obligation to proceed in the manufacture, and could recover for the goods supplied up to that time.

The conclusion of law, made upon the facts, is well founded. None of the exceptions to the rulings upon evidence have any merit.

The effort was to show what damages defendant had sustained by plaintiff’s refusal to complete the contract as made. But the referee having found that plaintiff was justified in refusing to proceed further, the amount of damages, sustained by defendant becomes immaterial.

Judgment affirmed, with costs.

Dykman, J, concurs.

Barnard, P. J.

(dissenting)—The action was for goods made and sold upon orders therefor by defendant to plaintiff. The action sets up a counterclaim to the effect that the goods were unreasonably delayed so that the season of sale passed without sale being made on account of plaintiff’s failure to fulfill the contract, although contract had been made to sell the same. The referee excluded an offer to prove that the defendant made contracts to sell the goods, ordered and that by reason of the failure he was greatly damaged. That he could not" obtain the same kind of goods in market and that the plaintiff failed to deliver the goods in time under the contract. Specific questions were excluded, addressed to the same end as that proposed by the general offer. The case is barren of all evidence in support of the counterclaim or against it. The referee finds at length that the plaintiff was justified in canceling all unfilled orders for a failure on defendant’s part to pay as agreed, and that there was no lack of diligence in filling the orders which were filled. There was probably testimony which the case does not return, but, upon the errors in rejecting the proof offered by defendant, the judgment should be reversed and a trial granted, costs to abide event. Order of reference vacated.  