Lakin agt. The New-York & Erie Railroad Company. cause, to make a further or supplemental report, stating whether certain facts were proved before him or not. T. H. WHEELER, for appellant. By the court-SHANKLAND, Justice. It is not pretended that all the evidence given on the trial is not embodied in the case made and settled, or to be settled; but it is claimed that the referee has omitted to pass upon all the facts proved on the trial, and necessary to be stated in order to determine the rights of the parties; but a careful examination of the pleadings and report of the referee convinces me that he has passed upon all the facts necessary to the decision of the cause, and has stated those facts in his report agreeably to § 272 of the Code. The main issue to be tried was, whether the defendants had so constructed their bridge across the Delaware river as not to impair its usefulness, or, in the language of the general railroad act of 1850, whether the defendants restored said river to its former state, or to such a state as not unnecessarily to impair its usefulness." The referee finds, as matter of fact, "that the bridge is so constructed as not materially to injure the free navigation of the river with rafts, in time of an ordinary freshet, for running lumber, when such rafts are conducted with proper skill and care; and that defendants did sufficiently restore said stream to its former state, so as not to have impaired its usefulness for the navigation of rafts of lumber in times of ordinary freshets for running lumber, and when such rafts are conducted with proper skill and care." Whether the facts found by the referee warrant the conclusions of law drawn by him therefrom is not to be determined in this motion; that question will arise and must be met on the argument, on the motion to reverse the judgment entered on the report. Whether the qualified finding of the referee as to the degree in which the stream was restored to its former state of usefulness comes up to what the statute requires will then be in order. If the defendants restored the stream to its former state of Lakin agt. The New-York & Erie Railroad Company. usefulness, they are not liable for any damage to persons navigating the same from whatever cause arising. It matters not, therefore, whether the plaintiff's rafts were manned with expert and careful hands or otherwise, nor whether they used ordinary or extraordinary skill in navigating said rafts on the occasion in question. I repeat, the great essential fact to be ascertained was, whether the defendants restored said stream to its former state of usefulness. The inquiry as to the manner in which the rafts were navigated was material only in determining the great question before mentioned, but was not necessary to be mentioned in the report; and if it had been expressly found that the rafts were navigated with ordinary care and skill, it would not have changed the result, because the accident may have been the result of inevitable accident; or the stream, prior to the erection of the bridge, may have required extraordinary skill to run it in safety at the place where the bridge is erected. But, as a question of practice, it seems to me improper to ask for an amended report from a referee, on motion, in a case like this. If the referee has neglected to find all the issues referred to him, and necessary to the determination of the action, the remedy should be a motion for a new trial, like the old practice of issuing a venire facias de novo, where the verdict, whether general or special, was imperfect by reason of some uncertainty or ambiguity, or does not find the whole matter put in issue. (2 Dunlap's Practice, 693, 656; 4 J. R. 213; 2 id. 210.) If we should grant this motion, it would substantially be referring back the cause to the referee, to adjudicate upon points which he neglected to pass upon on the former hearing. In short, it would be granting a new trial in fact, without power to hear the parties on testimony. I am certain this cannot be done. After the referee has made his report on the facts and conclusions of law, the only thing we can do is to examine and determine, 1st. Whether he has passed upon all the material issues made by the pleadings. Page and others agt. Boyd. 2d. Whether his findings on each of the questions of fact is supported by the evidence. 3d. Whether the legal conclusions from the facts are in accordance with the law of the land. If the referee has erred in either of these particulars, we must grant a new trial, or other appropriate remedy. I am of opinion that the referee has passed upon all the material issues in this case; and that, at all events, the party's only remedy is to bring on his appeal to argument; and if it there appears that all the issues made have not been passed upon, or the report is ambiguous, or the legal conclusions from the finding are erroneous, then a new trial is the proper remedy to be granted. This motion asks for a remedy which is inappropriate, and should be denied, with $10 costs. SUPREME COURT. PAGE and others agt. BoYD. Where goods are purchased from A, at the request of B, who holds them as trustee, to sell and pay certain of the proceeds to C. E has the legal and equitable title in the goods. C has but an equitable title in the proceeds; and only in part of those. In such a case, it cannot be said, as matter of law, that the purchase is made by C, as principal, through B, his agent. B is not agent but principal. C is nei ther principal, nor owner, nor buyer, in any sense. Where, in such case, it was averred, substantially, that C had paid to A a large share of the purchase money for the goods, and had promised to pay the remainder if B would authorize it; which B had not done, except inferentially, held, that these were not such facts as constituted a statement from which the law alone, without the aid of a jury, would draw the conclusion that the purchase was made for the benefit of C. They were partial evidence of such a fact or state of things, but not an averment of such a fact. New-York Special Term, March, 1855. DEMURRER to complaint. The complaint alleges that the plaintiffs, at the request of one Page and others agt. Boyd. Mallon, expended large sums of money, amounting to $9,075.34, in the purchase of merchandise, which was placed in a schooner to be conveyed to Kingston, Jamaica; and that for making the purchases and their services, they were entitled to be paid the sum so expended, and $227.71, of which the defendant had notice. It then adds, that the merchandise put on board the vessel belonged to the defendant, and not to Mallon, "but were held by Mallon as trustee, to sell the same, and pay over certain of the proceeds thereof to the defendant. That the defendant has since paid $7,500 on account of such advances and commissions, but not the remainder thereof; that the plaintiffs drew their draft for such remainder on the defendant, which he refused to accept, but he promised to pay the same, if on hearing from Mallon he should authorize such payment: that Mallon did authorize such payment, and drew his draft in favor of the plaintiffs on the defendant for the amount, which the defendant refused to accept. The defendant demurs to the complaint. for defendant. MITCHELL, Justice. There are some general statements in the complaint which are evidently qualified, and intended to be qualified by subsequent parts; and they must be taken accordingly with such qualification, and not as absolutely as if the qualification were not added. Thus it is said that Mallon did authorize the payment of the first draft, and drew his draft in favor of the plaintiffs on the defendant for the amount. This evidently means that he authorized the payment by drawing the second draft, otherwise there was no need of referring to the second draft. This being so it is plain that the authority which the defendant wanted was not furnished to him, which was an authority to pay the first draft. The payment by the defendant of the second draft would be prima facie evidence that he had so much funds of Mallon's in his hands, and in no way an authority from Mallon to pay the first draft. Page and others agt. Boyd. So the allegation, that the merchandise was not the property of Mallon, but of the defendant, is explained by what follows, stating why it was not Mallon's, namely, that "it was held by Mallon, as trustee, to sell, and pay over certain of the proceeds. thereof to the defendant." The facts, then, admitted by the complaint are, that the plaintiffs made the advances at the request of Mallon, who (at some time-perhaps even after the purchase was made-for the complaint does not say when) held the same as trustee, to sell the same, and pay over certain of the proceeds thereof to the defendant, and that the defendant has paid $7,500 on account, and has promised to pay the rest if Mallon would authorize it, which Mallon has not done. If the same facts were shown to a jury, and the trust were concealed, this might be evidence from which they might infer that the purchase was made by Mallon as the agent of, and for the benefit of the defendant, and they might have found the defendant liable. But still they are not such facts as constitute a stateinent from which the law alone, without the aid of a jury, draws the conclusion that the purchase was made for the benefit of the defendant; they are partial evidence of such a fact or state of things, but not an averment of such a fact. A jury may be bound to find a vessel unseaworthy when she commenced her voyage, if she founders at sea on the day of leaving the port, without any collision or any storm, or any visible cause; but the averment of these last facts in an answer, would not be an averment that she was unseaworthy when she commenced her voyage. The proof that the defendant paid $7,500 of the plaintiff's claim would be partial proof of his admission of his liability for the goods purchased; but, when stated in a pleading, it is no averment of the fact that he was so liable. If it were received as such evidence, then it would be proper for the defendant to answer in the same way, and instead of taking issue on the issuable fact, whether the goods were purchased for his account, to set forth his evidence to explain why he paid that money, and state also any other evidence in his defence. The fact of the payment must, therefore, be disregarded. The facts as VOL. XI. 27 |