By the Court,
E. Darwin Smith, J.This case comes before us upon appeal from a judgment rendered upon the report of a referee. The appeal is based upon the record, and brings up for review only the questions of law stated or found in .the referee’s report, the case containing exceptions to the report, but none of the evidence received on the trial. The referee finds that in the spring of 1869 the plaintiff agreed with the defendant to purchase, and the defendant to sell, a certain quantity of shingles then manufactured, and all the shingles of the same description which the defendant should manufacture during the season which terminated about the 18th of November following. That the plaintiff advanced upon such contract, from time to time, the sum of $3,698.98, and received shingles, amounting in all, at the price agreed upon, to the sum of $3,178.12. That on the 7th of September the plaintiff notified the defendant that he would not take any more shingles; and that the defendant manufactured 225,000 shingles that year, which were of the description the plaintiff was bound to take,which he sold to other persons at a loss of $112.50. That there was an excess of money in the defendant’s hands of $520, from which he deducted said sum of $112.50 loss so sustained by defendant by reason of the refusal of the plaintiff to receive all the shingles manufactured.
I do not see why the referee’s conclusion from these facts found by him is not correct. He charges the plaintiff, practically, with all the shingles manufactured by the defendant and déliverable under the contract; *559allows him to apply upon the contract price the proceeds of the sale of such shingles; and charges him with the loss sustained by the defendant by his non-fulfilment of the contract, and gives judgment for the excess of moneys in the hands of the defendant, to which clearly he had no legal title.
[Fourth Department, General Term, at Rochester, April 1, 1873.The judgment should be affirmed, (a)
Mullin, Talcott and E. D. Smith, Justices.]
Affirmed by the Court of Appeals. (See 56 N. Y. 676.)