Sermont v. Baetjer

By the Court, James C. Smith, J. There is no force in the position taken by the counsel for the appellants that the referee’s finding of facts is insufficient, and therefore the judgment should be reversed. The findings objected to are [364] those relating to the alleged false representations and to the plaintiff’s performance of the agreement. In respect to the first of these, the report of the referee is claimed to he insufficient, inasmuch as it does not find specifically whether the plaintiff did not in fact make the representations alleged ; or whether he made them and they were true ; or whether he made them and they were true but were not fraudulent; or whether they were made and were false but did not induce the defendants to enter into the contract. The finding in respect to performance by the plaintiff, is alleged to be insufficient, because it does not specify whether other freight was offered and refused as averred in the answer ; or whether or not the vessel could have carried more ; so that it is impossible to say whether the referee concluded that the vessel was full and therefore the plaintiff had performed, or that the vessel was not full, but no other freight was offered, and so the plaintiff had performed. These several objections assume that the referee was required to report upon every issue made by the pleadings. But a referee is not required to find upon any other facts than those which enter into and form the basis of the judgment to be entered upon his report. He is not required to negative in express terms any other facts. Facts not found are necessarily negatived by implication. (Code, § 272. Nelson v. Ingersoll, 27 How. 1, and cases there cited,) Tested by this rule the report in the present case is clearly sufficient. It would have been sufficient in respect to the points objected to if it had found merely that the parties executed the charter-party set out in the complaint, and that the plaintiff fully performed its requirements on his part. Upon those findings the plaintiff would have been entitled to judgment for the sum found due and unpaid. The finding that the parties executed the charter-party, would have implied necessarily that the agreement was valid and binding upon both parties, and' would have negatived the allegation that the defendants were induced to enter into it by fraud on the [365] part of the plaintiff. It is wholly immaterial, therefore, whether the finding contained in the report, respecting the alleged false representations, is regarded as expressly negativing all, or a part only, of the facts essential to the defense of fraud. The sufficiency of the finding that the plaintiff fully performed the agreement, is equally apparent. It is to be observed that the findings state the terms of the charter-party ; that is, they state it to be as set out in the complaint, and the complaint sets out what is therein alleged to be a copy of the charter-party. That being the case, the finding in respect to the plaintiff’s performance is .sufficiently explicit. It is not necessary to find in what manner he performed, or what particular acts he did by way of performance. If in any proper view of the testimony, a performance is shown, the finding is sufficient; if not, it cannot be sustained. The next question is whether the findings referred to are against the weight of evidence. I have read all the testimony in the case, and I think that given on the part of the plaintiff fully sustains the conclusions of the referee. The most that the defendants can successfully claim in respect to it, is that it is contradicted in many essential particulars by the testimony introduced by the defendants, but that alone is no ground for reversing the referee’s decision. The testimony given on the part of the plaintiff fully meets that given on the other side. The defendant De Yertu testifies that the false representations alleged to have been made by the plaintiff personally, were made by him in a conversation which De Yertu says took place a few days before the charter-party was signed, and was the only conversation between them. But this is contradicted by the plaintiff, who testifies that he never saw De Yertu about chartering the vessel until after the charter-party was signed, he having been represented in the transaction by his agent, Salem. De Yertu also testifies to representations made by Salem as to the capacity of the the vessel; but it is apparent from all the testimony, that what Salem said on that subject was intended by him as the [366] expression of a mere opinion, and was not relied upon by De Yertu as the assertion of a fact; at least the referee was warranted in taking that view of the testimony. Salem was a ship broker in Hew York, and it does not appear that he had any personal knowledge of the vessel. He testifies that in the conversations between him and De Yertu, each party referred to what the plaintiff had told him about the vessel's capacity; and that when told by De Yertu that the plaintiff had agreed that she would-carry 450 to 480 tons of Havre cargo, Salem declined to insert a stipulation to that effect in the charter. He also testified that when the charter-party was made up, and a copy handed to De Yertu, he was anxious to know how much she would carry ; and the plaintiff told him he need not be the least afraid, as she was a large carrier. This item of testimony tends very strongly to show that De Yertu placed no reliance upon any thing that had been said to him by the plaintiff or his agent respecting the capacity of the vessel, before the charter party was signed. In respect to the amount óf freight received on board, the substance of the defendants’ showing is. that there were some eleven tons which the plaintiff refused to take. The plaintiff testifies that his vessel was full, but the cargo was not heavy. The referee seems to have credited the plaintiff's statement, and it fully justifies his finding, that the plaintiff performed the agreement. [New York General Term, April 3, 1867. The memorandum offered in evidence by the defendants was properly excluded. The judgment should be affirmed. Leonard, Ingraham, and J. C. Smith, Justices.]