Opinion
Argued September 29, 1877
Decided October 9, 1877
E.F. Bullard, for appellants.
Esek Cowen, for respondents.
The points urged on this appeal relate principally to controverted questions of fact. It was the duty of the General Term to review the findings of the referee on those questions; we cannot do so after an affirmance by the General Term, so long as there is any evidence tending to support the findings.
We think, however, that the General Term should have sent the case back to the referee to pass upon the matters embraced in the twelfth and thirteenth requests. There was evidence which would have sustained a finding of the use by defendants of the plaintiffs' horse and wagon, and that it was the understanding of the parties that it should be deemed an equivalent for the defendants' services in teaming, etc., as alleged in the reply, and that no charge should be made for such services. The evidence in support of these allegations is circumstantial and not conclusive, and, therefore, a mere request and refusal to find the facts as claimed would not have afforded good ground of exception. But the appellants' requests, although not very artificial in form, were, we think, in substance, requests to pass upon those questions, and the motion which was denied was to that effect, and the refusal was, in substance, to make any finding on the subject. The use of plaintiffs' horse and wagon was clearly proved, and the referee would have been authorized to infer that there was no agreement to make any further compensation for the services of defendants' team from the facts that they concede that during the whole five years, during which such services were rendered, they made no charge therefor, and that during the same period they had pecuniary dealings with plaintiffs, and made payments to them, without claiming any payment or allowance for such services; that neither party kept any account of the services rendered in teaming, and that no claim was made therefor on either side until this litigation arose, when the defendants set up the counter-claim against the note they had given to plaintiffs, of a gross sum for such services, lumped and estimated at $200 per annum. The referee would have been justified in disallowing this claim, and the General Term might have done so, had the facts been found.
The judgment of the General Term should be reversed, with the costs of the appeal to this court, but it does not follow that the judgment entered on the report of the referee should now be reversed. The order should be that the case be sent back to the referee, to pass upon the facts embraced in the twelfth and thirteenth requests. ( Quincey v. Young, 53 N.Y., 504.) When these facts are passed upon, the case can then be reheard at General Term, and all the questions of fact and law will then be before it for review.
The other requests are either covered by the findings made, or relate to items of evidence which were not proper subjects for findings. Only conclusions of fact need be found — not circumstances leading to such conclusions.
The only other exception to the rulings of the referee, which is insisted upon in the appellants' points, is to allowing the witness Gooding to testify as to the value of the teaming done by the defendants. It was not objected that he was not competent to judge of its value. No specific ground of objection was stated at the trial. He said he had never done any teaming himself, but that he knew the value of the services of horses, etc., and he testified to the value of the teaming as described in the testimony, which he had heard. We think this evidence was admissible under a general objection.
The judgment of the General Term should be reversed, wlth costs of this appeal, and the case sent back to the referee for further findings.
All concur, except FOLGER and MILLER, JJ., absent.
Judgment accordingly.