*452By the Court,
E. Darwin Smith, J.
The conclusion of law upon the facts found by the referee is clearly correct. The referee finds as matter of fact that the plaintiff on the 2d of July, 1864, shipped. to the defendants 3880 bushels of oats, the property of the- said plaintiff; That the defendants received the oats, sold them for $3225.67, after deducting charges and commissions, and refused upon demand to pay such proceeds to the plaintiff. This-makes out a clear cause of action.' The defendants claim that the finding is erroneous in point of fact, and insist that the plaintiff was not the owner of said oats, but that the same were purchased on their account and with their money, and were their property. Upon a judgment rendered by a referee or single judge the court reviews the facts as well as the law, and upon the same principles which govern the review of the verdict of a jury. The plaintiff in this case gave evidence tending to show that the oats in question were his property, and the defendants also gave evidence tending to disprove the plaintiff’s case and to show that the oats belonged to them, and to make out a defense to the action. The referee has believed the plaintiff’s witnesses and found in his favor upon the facts, and thus by implication has negatived the .defense. The report in favor of the plaintiff in such case is not only an express finding upon the facts in his favor, but is in legal effect a finding against the defendants that the defense was not established, and that no facts were proved by the defendants which warranted a finding in their favor upon the whole issue. Before we can reverse the judgment rendered by a referee' in such a case, we must, upon a review of the testimony, come to the conclusion that his finding upon the facts is against the clear weight of the evidence, precisely as we should hold if the case had been tried by a jury, and their verdict upon the same facts was "for the plaintiff, that such verdict was not warranted- by the evidence. . The plaintiff clearly shows that the precise *453quantity of oats mentioned in the report had been delivered by him at the warehouse of Hollister, the shipper, at or before the time of the shipment of such oáts, and he produced the shipping bill of said oats, signed by the said warehouseman and shipper, showing the shipment of this quantity of oats on board of a canal boat owned by said Hollister and others, for and on account of the plaintiff’s consignee, to the care of the defendants. These facts clearly establish, prima facie at least, that the oats in question were the property of the plaintiff, and had been received by the defendants as his consignees or for his use and benefit. Of these oats the defendants clearly proved that 1253 bushels were not in fact the identical oats delivered by the plaintiff to Hollister and placed in store in his warehouse, but were in fact other oats purchased by Wilmot with money obtained upon drafts drawn by him upon the defendants. Upon the proofs the referee was clearly warranted in finding that 1253 bushels of the - plaintiff’s oats were during the winter of 1863 and 1864 lent to Wilmot and- used by him, and that of the oats shipped to the defendants, the same number of bushels were received and taken from Wilmot’s oats in return-for or repayment of the oats so lent. Hpon these facts there is, I think, no reasonable ground of doubt that Hollister & Wilmot were interested in the operation of buying and shipping oats, (Wilmot himself, the defendants’ witness, proves this fact,) and that Hollister did, therefore, in borrowing and paying oats in their common business and for their com-' mon benefit, bind both parties. I do not see, therefore, why Hollister might not lawfully; with Wilmot’s assent, pay these 1253 bushels of oats to the plaintiff, and why he might not lawfully ship them for him, and give and make the bill of lading or shipping bill in the form produced and proved. Certainly the referee might find that such were the facts and such the true transaction.
The only question which remains, therefore, on this point, *454is whether the oats in question—these 1253 bushels—were in fact tHe property of the defendants or of Wilmot. If they were" in fact the property of the defendants, Wilmot or Hollister, or both, could not transfer any title in them to the plaintiff, and the defendants have only received their own property. On this point I do not see that the "defendants gave, or offered to give, any proof that would have warranted the referee in finding that the title to these 1253 bushels of oats before their shipment was in them. It is not pretended, and was not contended before the referee, that Wilmot was the agent of the defendants for the purchase of the oats; or that Wilmot & Hoi- . lister were such agents; or that such oats were purchased on their account as principals ; except that they were purchased on an agreement between Wilmot and the defendants that they should be consigned to them. Simons, one of the defendants, was sworn as a witness, and testified that their firm, prior to July and August, 1864, had been doing business with Wilmot, accepting his drafts on the strength of consignments. made by him to them. The y witness further said that in the beginning, in 1861, “we told Wilmot that the property must be consigned to us, as we would have nothing to do with him unless the property were consigned to us, and he agreed to it.” The transactions, it appears, between these parties under this agreement were large, amounting at the time of the trial to upwards of $200,000. But it does not appear from any thing I see in the evidence that there was any agreement for a lien by the defendants upon the property purchased by Wilmot, or that the title should be in them from the time of its purchase; and there is in the evidence nothing to warrant such a finding as matter of fact by the referee. Wilmot drew upon them as he had occasion, purchased produce with .the proceeds of the drafts, and- sent it to Hew York consigned to them to meet his drafts. The property' was his, and the profits of the speculation were entirely *455his, if any were made; the defendants being entitled to retain from the proceeds of the sale of the property when sold the amount of their advances, interest and commissions and expenses. The defendants were mere commission merchants, and received and were to receive the property for sale as such, not as owners, or even as partners. They had ño title to the- property and no lien till it was consigned to them by Wilmot. Until consignment, in such cases, the lien does not attach. (Brown v. Hodgson, 2 Camp. 36. Stanton v. Eager, 16 Pick. 467.)
[Monroe General Term,
September 2, 1867.
I do not see, therefore, how the referee could have found title in the defendants to the oats in question. It follows that the finding that the property was in the plaintiff was not unwarranted by the evidence, and we cannot reverse the judgment on the ground that the referee erred in his findings upon the facts and that his report for the plaintiff is against the weight of the evidence, or against the evidence. The judgment must therefore be affirmed.
Judgment affirmed.
J. C. Smith, E. D. Smith and Johnson, Justices.]