The only exception which appears to have been taken by the appellants to the ruling of the referee, in receiving or rejecting evidence, was to his sustaining the plaintiff's objections to proof of the oral negotiations and conversations between the parties, prior to and at the time of the making of the contract in suit.
The rule is too familiar to be questioned, that it is not competent to alter, vary or affect the obligations created by a written agreement, by evidence of the cotemporaneous or prior negotiations of the parties. The questions which were objected to, called for all that took place. In every possible view of the subject, such a question was properly excluded. If it had been proposed to show a distinct collateral agreement, *Page 76 not embraced in the terms of the contract, a different question would arise, but there was no such claim or pretense. If the terms of the agreement were ambiguous in their application to the subject-matter, it might be competent to show what was before the minds of the parties, but no such ambiguity existed. The terms of the written agreement prescribed certain particulars, and, in respect to what was not specified, the engines agreed to be built were to be unsurpassed by any steamboat engines of its class, and guarantied to propel a boat of the dimensions stated at a speed mentioned. It is clear, that, except in the particulars stated, the details of the construction were left to the judgment of the builders, and no evidence of parol agreements, inconsistent with this, was admissible.
But there is, in truth, no foundation whatever for the exceptions. The plaintiff's counsel withdrew his objections, and the witness testified at great length to his interviews with the plaintiff, and what took place between them from the moment when the proposition to build was first made, down to the time when the steamboat went to Havana.
The other exceptions are chiefly addressed to the findings of fact, which are not the subject of review in this court in the form presented by the present case. Had the Supreme Court deemed it their duty to reverse the judgment upon questions of fact, and so stated in the order of reversal, the present law gives this court jurisdiction to review such questions.
The appellants' counsel, in his argument, has taken a much wider range, and asks us to reverse because the referee has notfound or passed upon various matters which he claims were in issue.
If he desired a more full or specific finding, he should have required it, and, if necessary, have sought the aid of the court below to that end. It is not within the jurisdiction of this court to examine the case, except upon the facts found, and if there was no error in law committed, assuming the facts to be as found by the referee, we have no alternative but to affirm the judgment. Whether, upon a request to find *Page 77 upon issues or questions deemed material, and a refusal by the referee to find either way, an exception will lie which would be available in this court, was left undecided in Grant v. Morse (22 N.Y. 323), and the question does not arise here, for the case does not show that the appellant desired or has in any manner sought or requested any other or further findings than are contained in the report of the referee.
Upon the facts found, the conclusions of law stated by the referee are inevitable, unless, as matter of law, it be true that it appears by such findings that the defendants were entitled to be allowed $100 per day as liquidated damages for the contractors' delay in completing the engines contracted for, so far as necessary to extinguish all claims by the plaintiff, their assignee. The contract bore date May 28, 1857, and in terms required the plaintiff's assignors to build and place on board a steamboat, to be furnished by the defendants, two steam-engines, of the description specified, for the price of $8,000, "and to have the same completed, ready for steam, on or before the 15th October next, under a forfeiture of one hundred dollars per day for each and every day after the above date until the same is completed as above." The referee has found that the work so agreed to be done was not completed until about the middle of February, 1858, one hundred and twenty days after the day mentioned for its completion. It does not appear, by any distinct specification in the referee's report, whether he allowed any thing to the defendants for damages, by reason of the delay, nor whether any damages were proved by them to have been sustained. The proper inference is, that, if any were proved, they were allowed. But it is quite clear, that $100 per day, or $12,000, were not allowed, else it would have extinguished all claim by the plaintiff.
I think that in this there is no error.
1. The contract declares this provision to be a "forfeiture." It must, then, be so construed, and the parties be deemed to have so intended, unless the agreement plainly indicates the contrary. The general rule requires that what *Page 78 the parties themselves prescribed as a forfeiture, shall be so treated.
The agreement in this case does not clearly indicate the contrary. The engines were to be built and put up complete, to the satisfaction of the defendants or other competent judges. The forfeit, or penalty as such, was appropriate to compel the plaintiff to supply or remedy the slighest deficiency, but by no means indicated that a slight defect, easily and at small expense supplied, was to be compensated, and no more than compensated, at $100 per day.
2. The report of the referee shows that the parties themselves either treated this provision of the contract as not providing a sum certain as liquidated damages, or for reasons satisfactory to themselves, waived performance according to the letter of the contract. On the 27th December, seventy-two days after the expiration of the time limited by the contract for the completion of the work, they adjusted the amount due to the assignors of the plaintiff at $9,676.39, recognizing the right of the contractors, notwithstanding the delay to the full contract price, and to payment for extra work beyond that price. This plainly indicated either that the sum mentioned as a forfeiture was a mere penalty, and the delay was without actual damage to the defendants, or that such penalty or forfeiture had been waived by reason of alterations or extra work.
3. If the question whether the $100 per day was intended by the parties as liquidated damages, or a penalty depended upon facts extrinsic the contract itself, as the relation of the defendants to the subject, their possible engagements to other parties, the value of the use of the completed engines, or other circumstances known to the parties when the contract was made, and in view of which the agreement was entered into, these were subjects of proof on the trial, and the finding of the referee, so far as it could properly be affected by such circumstances, must be regarded as a finding of facts and conclusive. It is a matter of some satisfaction to me (though not within our province to investigate, because a mere question of fact) that the defendants appear by the evidence to *Page 79 have collected from the party, by whom they were employed to build the steamboat, the whole bill, and even more than has been awarded to the plaintiff in this action.
The judgment should be affirmed.
Judgment affirmed. *Page 80