Lefler v. Field

By the Court, Johnson, J. The defendants, as the case shows, after the decision by the' referee, excepted to each finding of fact, and also to the “ conclusions of law, and to each and every part thereof.” The exceptions to the findings of fact are idle and of no avail. The decision of a referee is always open to review upon the facts, in this court, without any exception. The court will always look into the evidence, if the question is raised, so far as to see whether there is evidence tending to prove the facts, or either of them, as found by the referee, and no exception is necessary to raise the question. The exceptions to the conclusions of law are so general as scarcely to raise any question of law whatever. At most it can only raise the question whether any of the conclusions of law are justified by the facts found. There can be no doubt, in this case, that not only some, but all, the conclusions of law, found by the referee, are justified and flow from, his findings of fact. And in regard to the findings of fact, upon a careful examination of the whole case it appears that there are'none that are not fully sustained by the evidence on the trial. The review must therefore be confined to the questions of [411] law raised in the course of the trial. The question as to whether the plaintiff intended to sell the harley as merchantable barley, was properly overruled. There was no question of fraud or deceit in the sale, in the case, and the question of intention was in no respect material. The material question in the case was, what contract the parties did make, and not what their intentions were in making it. The question at issue was whether the contract as made, was for merchantable barley or for good barley, badly stained. There was abundant evidence to show that the plaintiff’s agent, who made the bargain, saw and examined the barley carefully, before the bargain was consummated, and there was no question before the referee, in respect to any misrepresentation of the quality of the harley by the plaintiff. The referee also decided correctly, in excluding the evidence of the secret intentions given by the defendants to their agent Morehouse, in regard to the quality of the barley he was to purchase, unless such instructions were communicated to the plaintiff. Morehouse was confessedly their agent, for the- purchase of barley, in the neighborhood where the plaintiff resided, and any private or specific instructions, in regard to particular kinds, or qualities, of barley to be purchased by him, could not affect third persons dealing with the agent, unless such instructions were brought to the knowledge of such persons. This is well settled. If the agent, in such a case, exceeds his authority, he is liable to his principals, and they must seek their redress against him, and not against persons with whom he has dealt, if such dealing is within the general scope of the authority. But it will be seen by looking into the case that this evidence was given afterwards, and in various ways, and as it is not stricken out, or expunged in any way, the presumption is that it was considered by the referee. So that the exception would be rendered nugatory even had it been well taken. The question put to the plaintiff’s witness and agent, upon his cross-examination, in regard to the fall in the mar [412] ket price of barley, was ■ properly allowed to be answered, and the exception to the ruling is not well taken. It was objected to as" incompetent and immaterial. The objection Was overruled, and the witness answered “ twenty-five cents per bushel.” ’ This certainly was not material evidence upon the issue between the parties, as the markét price of barley was not in dispute between them. As evidence upon the issue of contract or no contract, or of delivery and acceptance upon a contract, it may fairly be said to be incompetent and immaterial. But whether it was competent and material upon cross-examination, as having some bearing upon the conduct, and the entire credibility of the witness is another question. It is quite apparent from the case, that this question was put to the witness in reference to, and as bearing upon, the course he had pursued in the transaction, and to suggest a possible motive therefor. The rules óf cross-examination allow a very considerable latitude in this direction, by way of testing and sifting evidence given by a witness on his direct examination ; they allow an inquiry into the interest, the motives, the inclinations and prejudices of the witness, his situation in respect to the parties, and the like. The power of cross-examination is justly regarded as one of the principal and most efficacious tests which the law has devised for the discovery of truth. (1 Greenl. Ev. § 446.) Here was a question calculated and intended, to draw the fact from the witness, that the fluctuations in the market price of barley after the bargain was first made or talked over, had rendered it unprofitable to, and against the- interests of, his principals to have the bargain made obligatory upon them. I can have no doubt whatever that this was a proper question, on cross-examination. It would clearly be a proper question to put to a party on his cross-examination, who should appear as a witness in his own behalf to disprove an agreement proved upon the other side. Ho one, T think, -will question this. For the same reason it would be pertinent to any child or other relative of [413] a party, or to any one holding such relations to the party, that a partiality in his favor might be fairly presumed to exist. The question whether the plaintiff had not broken the contract on his part by retaining twenty-five bushels of his crop, for seed, now insisted upon, was not raised upon the trial. Ho exception was there taken, and no suggestion made in regard to it. Had the question been raised upon the trial, any difficulty in regard to it might have been obviated by evidence of assent on the part of the defendants, or evidence of general usage, on the part of farmers in selling their crops to retain sufficient for seed or family use. The question not having been raised at the trial, cannot now be raised and considered. Upon the findings of the referee the defendants’ agent accepted what was delivered upon the contract and in fulfillment thereof. I confess I should have been better satisfied if the referee had found distinctly upon the questions, .of the extent of the authority of the agent, in regard to the quality of the barley he was authorized to purchase, and of notice of the limitation to the plaintiff, both which questions seem to me to have been fairly raised by the pleadings and evidence. And also upon the question whether the barley in question was or was not merchantable barley. But it was the duty of the 'defendants, if they were not satisfied with" the facts found, and desired other findings of fact in addition thereto, to move the court, before the time for excepting had expired, to send the case back to the referee to have him find one way or the other upon the other material questions of fact in issue and not passed upon. (Brainerd v. Dunning, 30 N. Y. Rep. 211. Ashley v. Marshall, 29 id. 494.) If nothing of this kind is done, the presumption arises that the referee has found all the material questions of fact against the defeated party. In case of such a motion, the time for taking and serving exceptions may be extended by order. (1 N. Y. Rep. 586.) It will not do in such a case for ■ the [414] party to lie by until the settlement 'of the case before the referee, and then request him to make new or further findings, beside those contained in his report, as the referee then has no power to make new findings of fact, or to examine the case for any other purpose than to settle truly, what took place and was determined when he had jurisdiction of the case for the purpose of trial and determination. [Monroe General Term, March 2, 1868. The referee has found, in substance, that the barley was purchased as stained barley, but otherwise good, and that it was such an article. I do not see that there has been any error committed by the referee, which is now available to the defendants, and. the judgment must therefore be affirmed. E. D. Smith, Johnson and J. c. Smith, Justices.]