Marsh v. Palmer — 31 N.Y. Super. Ct. 523

Majority

p. 523

SEYMOUR N. MARSH and JOSHUA REED, Plaintiffs and Respondents, v. B. FRANK PALMER and WILLIAM RICHARDSON, Defendants and Appellants.

Headnote

Where an appeal from a judgment entered upon the report of a referee presents only questions of fact, in regard to which there is a conflict of evidence, the findings of the referee upon such evidence will he held conclusive.

Before Monell, Jones, and Freedman, JJ.

[Decided October 30, 1869.]

This case was tried before a referee.

The action was brought to recover commissions alleged to be due to the plaintiffs for orders for artificial limbs sent to the defendants ; also for the defendants’ proportion of the cost of advertising their artificial leg in circulars and books issued and distributed by the plaintiffs.

The referee reported in favor of the plaintiffs:

Judgment was entered, and defendants appealed to the General Term.

Mr. Joseph H. Choate for appellants.

The fatal defect in the referee’s report is that he fails to state all the terms of the agreement, which was made solely with reference to and as a part of the plaintiffs’ agency for the defendants, which was terminated by mutual consent in 1854, and never resumed.

The agreement found by the referee is a part of the agreement which the parties made in writing, by reference to which its true limits and nature are immediately apparent.

If there were any grounds for liability of the defendants’ firm, consisting of Palmer, Hudson, and Richardson, the parties sued

p. 524

as partners; they certainly cannot be charged for work done in the way of advertising before their firm existed, and after it was dissolved.

The finding of the referee that the 'advertising after 1854 was done “in pursuance of such agreement” falls to the ground when it appears that that agreement, the only one that was made to pay for advertising, was terminated, by mutual consent of the parties, in 1854.

Mr. Ira D. Warren for respondents.

There is no question of law in this case. Upon all the disputed ' questions of fact the preponderance of testimony is in favor of the plaintiffs; besides, the only witness who attempts to controvert the agreement is impeached—contradicted by his own letters. In eases of conflict.of evidence the referee’s decision is conclusive (Watson v. Campbell, 28 Barb., 421 ; Hooglan v. Night, 9 Bos., 894, cases cited; Voorhees’ Code, sec. 373,note h).

By the Court:

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiffs and against the defendants. The plaintiffs’ claim- for commissions having been waived, we have carefully examined the evidence bearing upon the liability of the defendants for the cost of the advertisements of their business inserted in the pamphlets issued by plaintiffs, and the findings of the referee thereon, and are of the opinion that the only questions arising therefrom, and presented upon this appeal, are questions of fact, in regard to which the evidence is conflicting, and upon which the decision of the referee must be held conclusive (Watson v. Campbell, 28 Barb., 421 ; Hooglan v. Wight, 7 Bosw., 394 ).

The judgment appealed from must, therefore, be affirmed, with costs.