*363By the Court
Peckham, J.I have carefully examined the evidence upon the questions of fact presented and urged by the appellants, and I am satisfied that this court should not interfere with the judgment upon either of such grounds. The contradictions are clear and absolute, and it was a proper case for the referee to decide as to the credibility of the witnesses. There is no conceded or clearly proved fact that controls the case. Upon some points the defendants have much the greater number of witnesses, but there is nothing in the testimony or facts that will allow this court to overrule the sound principle that witnesses “must be weighed, not counted;” and the referee who had the witnesses before him was better qualified than- this court can be for that purpose. There is one important fact proved on the trial in reference to the contract, viz.: That defendant, Robert F. Silliman, telegraphed to Hew York for the insurance of this rye on the evening when the plaintiff alleges he had forbidden Silliman to carry the rye, and Silliman testified that he was requested to so telegraph. This the plaintiff positively denies. It will be remembered that by the contract as conceded by both parties the plaintiff was- to get the rye insured at the defendants’ expense. It is a very pertinent fact that Silliman telegraphed to have the rye insured when he did; but as I do not intend to discuss the facts at length, I will not pursue this further. There is much contradictory evidence whether plaintiff requested Silliman so to telegraph.
The only question as to which we entertain any doubt is whether the plaintiff can treat the defendants as common carriers, and sue them as such when they took the rye contrary to and in defiance of the plaintiff’s orders. Under the circumstances, we think he can. According to the findings of the referee, the defendants agreed to cony the rye substantially at plaintiff’s risk at a given price: the plaintiff agreeing to get the rye insured at the defendants’ expense. This contract was based upon the representation of the defendants, that the boat on. which it was to be carried was a second-class boat. In fact, she was found to be a third-class, within the meaning *364of the parties; thus materially affecting the contract and the safety of the rye. Thereupon the plaintiff, failing to get her insured, forbade the transportation. Yet the defendants proceeded, and the rye was on the voyage injured to the amount of the damages found for the plaintiff.
The defendants insisted upon conveying the rye. It is clear, under these facts as found, that the defendants could not claim the exemptions from peril provided by the original contract. By a material misrepresentation the defendants had authorized the plaintiff, the moment he discovered it, to terminate the contract, and forbid the carrying of the rye. He did so. If the defendants still insisted upon carrying the rye they did so, we think, at their own peril, and upon risks and responsibilities incident to their employment. The plaintiff very likely may have treated them as wrong-doers, and thus prosecuted them. But we see no objection to his treating them as common carriers without any qualification or modification of their liabilities under the contract which was avoided by their misrepresentation. It may well be that the contract was void even as to the price of transportation, as well as in other respects; no doubt it was, but no question as to that was raised at the trial, and none can therefore be presented here. I have carefully examined all the points presented by the appellants. I think no error was committed by the referee, and the judgment is affirmed.
Judgment affirmed.