Butterfield v. Lathrop

The opinion of the court was delivered, by Sharswood, J. In the court below this cause was referred under the Act of January 20th 1870, Pamph. L. 85, extending to Susquehanna county the provisions of the act entitled “ An act authorizing the reference of civil actions in the county of Bradford,” passed April 6th 1869, Pamph. L. 725. By the 4th section of this latter act it is provided that the referee “ shall state the facts found and the conclusions of law separately, and his decision shall be given and may be excepted to and reviewed in like manner as though tried by the court with a jury, but not other [229] wise.” It follows that upon the rulings of the referee on the trial before him upon questions arising as to the admission or rejection of evidence, the party objecting must take his exception at the time, and that on review in this court the finding of the referee as to the facts must be regarded as conclusive, just as the verdict of a jury. It is evident that the act contemplates that there shall be in each case what is equivalent to a special verdict. The finding of the referee must have the same certainty and fulness as is required in a special verdict, so that the judgment shall be the conclusion of law upon the facts. Ten days, however, are given after the report is entered to file exceptions thereto, which we take clearly to have been intended by the legislature as a substitute for bills of exceptions to the charge of a court and their answers to points presented. No power is given by either of these acts to the Court of Common Pleas over the decision of the referee. “ The report,” says the Act of 1869, “of the said referee upon the whole issue shall stand as the decision of the court, and judgment shall be entered in the same manner as if the action had been tried by the court before a jury.” We think there was error in the conclusion of the referee upon the facts as found by him. Indeed upon a very material question the finding would be bad as a special verdict for uncertainty. He says: “ The sheriff’s sale on Lathrop’s judgment was at Mrs. Deans’s house; cheese not there but was at factory, or had been sold previously by the committee.” When sold ? previously to the levy or previously to the sale ? If previously to the levy, it is abundantly clear that Baxter had no interest remaining in any cheese, but if had been converted into a mere money demand on the factory. But suppose that no sale had taken place? The arrangement as proved between the farmers — owners of milk — and the cheese factory, is somewhat peculiar. It certainly did not constitute the parties partners. Nor were the milk-owners tenants iu common of the cheese when manufactured. No one could have claimed an individual share, and considered the sale by the factory as a conversion. Neither replevin nor trover could have been maintained. By the agreement ■ the milk delivered from time to time by the different customers was thrown into a common mass, made into cheese, sold by the committee of the factory, and then the milk paid for at the price produced b.y the cheese, allowing ten and a half pounds of milk to one pound of cheese, deducting the cost of manufacturing. “ The practice at the 'factory,” says the referee, “ was to credit the different patrons of that establishment with the number of pounds of milk received — to charge them one and a half cent per pound for what cheese was made — to credit the parties again with the proceeds of the sales in proportion to the amount of milk brought.” There was evidently no bailment or agency as to the particular milk delivered. By the very terms [230] of the agreement it was to he mixed and confused in part or in whole with other milk indefinitely. It was a sale of the milk to the factory, for which they were to pay at a certain time and in a. certain manner. It is not to he distinguished from the case of Jenkins v. Eichelberger, 4 Watts 121. There the contract was to deliver hides to a tanner at a certain price — the hides when tanned to he returned to the person who had delivered them, to he sold by him, and out of the proceeds, after deducting the price at which they had been delivered, the balance to be paid to the tanner. It was evidently a contrivance by which the hides were to be protected from the creditors of the tanner, but this court held it to be a sale. The same doctrine ivas maintained in Prichett v. Cook, 12 P. F. Smith 193. It is true in both these cases' the question was as to creditors of the manufacturer. But upon the facts as reported by the referee, it does not appear that there was anything to qualify the effect of the absolute delivery of the milk, to be used and mixed indiscriminately with other milk, and for which the party was afterwards to receive a credit at a certain rate. Baxter had then, from the delivery of the milk, a mere demand for the price of its product as agreed upon; and his interest was not such as could be seized and sold on a writ of fieri facias. Judgment reversed.