[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488 The judgment appealed from is for two items. First, for $486.82, the amount of an overcharge in defendants' account for the year 1869. Second, for the sum *Page 489 of $1,502.25 for old iron rails delivered to the defendants in 1870.
The allowance by the referee of the first item ($486.82) is not disputed on this appeal. The only questions raised relate to the second item of $1,502.25 for old rails.
As to this item the appellants make two points. They claim, first, that their agreement was to pay for the old rails in fish-joints, and that consequently a recovery could not be had for them in money, without proof of a demand of fish-joints and a refusal to deliver them. Secondly, that the plaintiff was not entitled to recover for the old rails delivered more than their market value.
The agreement under which the transactions took place was verbal, between Mr. Charlick, representing the Long Island Railroad Company, and Mr. Pratt, representing the defendants. As found by the referee, whose conclusions on controverted matters of fact must be the basis of our judgment, this agreement was that, in the year 1869, the Long Island Railroad Company agreed to deliver to the defendants old railroad iron at the price of fifty-one dollars per ton, and to receive in exchange therefor from the defendants fish-joints at the price of one dollar and sixty-five cents each.
These prices were conventional, and the referee so treated them. For the iron delivered to the extent of the fish-joints received, he set off one article against the other at the agreed prices. In this ruling we think he was right. The only troublesome question is whether for the excess of old rails delivered beyond the price of the fish-joints received, the plaintiff was entitled to recover in money, without some proof of a breach of the agreement to deliver fish-joints in exchange.
No such proof exists in the case. On the contrary, the findings of fact in this respect are that, by the agreement, it was not intended that the plaintiff should be required to pay cash for the joints, nor that the defendants should be required to pay cash for the iron, even though at times one article should be delivered in excess of the other. It is further *Page 490 found as a fact that the shipment of iron, out of which the demand in suit arises, was not ordered by the defendants, nor any previous notice of the shipment given to them, and that, on its arrival, they immediately notified the plaintiff that they did not need the iron, but would receive and credit it to the plaintiff in the account on account of fish-joints — to which notice the plaintiff made no objection or dissent.
Under these findings, it is impossible to sustain the judgment. No breach of contract on the part of the defendants is shown. On the contrary, the referee finds that the defendants filled all the orders which the plaintiff made upon them for fish joints, and that the plaintiff did not at any time demand any fish-joints on account of the excessive shipment of iron which forms the subject of this action. The judgment seems to have been rendered on the ground that, as the plaintiffs had delivered iron, and the court could not order that it be paid for in fish-joints, they must necessarily adjudge that it be paid for in money at the market price of the iron. In so adjudging, the court made a contract which the defendants never assented to. If the defendants had refused to fill orders for fish-joints to the extent of iron delivered, they would of course have been liable in damages; but, in the absence of any such default on their part, I can see no just ground of recovery.
The judgment should be reversed and a new trial ordered, costs to abide the event, unless the plaintiff elects to reduce the recovery to the item of $486.82, with interest, in case of which election it will be affirmed without costs in this court, to either party.
All concur, except EARL and ANDREWS, JJ., not voting.
Judgment accordingly. *Page 491