The appellant's counsel complains in his brief, that the referee has not found upon all the matters in issue, and claims that the judgment should be reversed for that reason. He never has requested the referee to find on those questions, and the referee has never refused. There is, consequently, no exception to any refusal to find on those questions. Under these circumstances, the appellant cannot claim as error the omission of the referee to find certain material facts. (Grant v. Morseet al., 22 N.Y.R., 323; Bishop v. Main, 17 Howard, 162;Ingersoll v. Bostwick, 22 N.Y.R., 425.)
The agreement embraced in the deed makes the defendant liable for the deficiency. (Lawrence v. Fox, 20 N.Y.R., 268; Burr v. Beers, 22 N.Y.R., 178; Belmont v. Coman, 22 N.Y.R., 439;Stebbins v. Hall, 29 Barbour, 524.)
There is nothing in the written instrument, executed at the same time with the deed, inconsistent with that liability, and the referee has found there was no mistake in placing that provision in the deed. If there was no mistake, it was the intention of the parties it should be there. There could be no mistaking the meaning of the provision, when there.
I think the judgment on the report of the referee and the judgment of the Supreme Court was right and should be affirmed with costs.
All the judges concurring.
Judgment affirmed. *Page 182