Smith v. . Pettee , 1877 N.Y. LEXIS 579 ( 1877 )

Rapallo, J.

This is an appeal from an order granting a new trial, m a case tried before a referee. The reversal of the judgment entered on his report was on questions of law only. Consequently our review must be confined to the questions of law raised by exceptions to his rulings upon the trial, and to his findings and conclusions. Unless we find some of these exceptions to be well taken, the order must be reversed and the judgment entered upon the report of the referee affirmed. The findings contained in the report are sufficient to sustain the judgment. No error of law appears in comparing these findings with the conclusion of law based thereon. The only exceptions taken to them relate to matters of fact, or mixed questions of law and fact. Most of these exceptions are clearly unsustainable. They are based upon two grounds: first, that by the terms of the contract upon which the action is brought, the iron, for the non-acceptance of which the defendants are sued, was to arrive by the “ Christopher,” whereas in fact it arrived by the “ St. Christopher,” and by reason of this slight misnomer of the vessel the defendants sought to repudiate their contract, without showing that there was any misunderstanding in fact as to the vessel intended, or any consequence whatever of the misnomer. The second class of exceptions relate to the quality of the iron. The contract was for 170 tons more or less, of No. 1 wrought scrap-iron, to arrive per ships as follows: “ Elpis,” 70 tons; “ Christopher,” 100 tons, light iron at half price. No complaint was made with regard to the iron per ‘1 Elpis.” The only objection raised to the other iron was that the name of the vessel by which it arrived was “ St. Christopner,” instead of “ Christopher.” The defendants did not, on the tender of the iron to them, make any objection to its quality, or that the quantity was deficient, but stood upon the ground that the name of the vessel differed from that written in their contract, and upon that ground only. Even in their answer to the complaint in this action, they do not set up any fault in the iron tendered to them; but upon the trial they gave evidence that out of the 103 tons or thereabouts which arrived by the St. Christopher, seven or eight tons were of a quality not embraced in the contract, and they seek to avail themselves now of that fact. Technical answers might be given to this claim, but the best one is that it is not founded in good faith. If the objection to receive the iron had been placed on the ground that among the 103 tons tendered there were eight which the defendants were not bound to accept, the plaintiffs could have separated these eight tons from the general mass, and would still have performed their contract by tendering the ninety-five tons, which would have been a substantial performance of the agreement, which was for 170 tons, more or less, by the two vessels; but by making the misleading and frivolous objection which they did, they prevented the plaintiffs from doing anything to supply the alleged defect. It is evident that the refusal to accept the iron was not on account of these eight tons, but that it was an unjustifiable refusal by the defendants on frivolous grounds to perform the contract they had made.

The contract having been broken, the plaintiffs sought to fix the amount of their reclamation, and for that purpose sold the iron. The referee finds that this sale was made within a reasonable time after the breach, and for the market price at the time of sale. There is nothing in the facts found showing any error in this conclusion, nor affording any material for deciding, as a question of law, whether the time was or was not reasonable. The length of time, the circumstances attending the sale, and the state of the market, are not found. The only point which the defendants can make in this court in respect to this finding is that there was no evidence whatever to support it. If the General Term had reversed the judgment on questions of fact it would have been our duty to examine the evidence and ascertain whether it satisfactorily established such a state of facts as authorized the referee to find that the sale was made within a reasonable time, but as now presented, the only question before us is whether there was any evidence in the case tending to show such a state of facts. A case must be made out very clearly to require us to reverse or sustain the reversal of a judgment on the ground that findings of facts are so wholly unsupported as to be errors of law. There was evidence in this case that immediately after the refusal of the defendant to accept the iron, the plaintiffs notified them of their election to sell it for the account of the defendants and hold them liable for the difference between the purchase price and the price the iron should realize. The plaintiffs thus promptly took their position, and became agents of the defendants for the sale of the iron, and bound to the exercise of good faith and reasonable diligence to effect the sale at the best price. They would doubtless have been bound to obey any instructions which the defendants might have given them as to the time and manner of sale, and which they could follow without sacrificing the lien they had on the iron for the contract price. In the absence of any such instructions they had the rio'ht to exercise their discretion within reasonable bounds.

There was some proof in the case as to the efforts made by them to sell the iron, and whatever our opinion might be as to the weight of the evidence, were that question before us, we' cannot say that the conclusion reached by the referee was so wholly unsupported by evidence as to justify us in holding that it was an error of law for which the judgment should have been reversed.

The exception to the refusal of the referee to decide that the rule of damages was the difference between the contract price and what the iron could be sold for within the shortest reasonable time after the breach of the contract, cannot be sustained. If made within a reasonable time that is all that can be required, and the sale cannot be invalidated by showing that it might have been made sooner than it was.

Without expressing dissent from the reasoning of the General Term upon which their order was based, we think that there were not sufficient facts found to raise the questions discussed, and justify the reversal on questions of law.

We have examined all the exceptions referred to in the respondents points, and do not find any upon which the reversal canche sustained.

The order of the General Term should be reversed and the judgment entered upon the report of the referee affirmM with costs.

All concur.

Order reversed and judgment accordingly.