the opinion of the court was delivered by
Paxson, J.:We have examined this voluminous record with some care, and have been unable to find any serious errors in the learned referee’s findings of fact or conclusions of law. Whatever might- have been the right of the plaintiffs in error to rescind the contract by reason of the defective quality of the iron furnished by the rolling mill company, had there been no understanding between the parties in reference thereto, yet the learned referee has found upon sufficient- evidence that a cancellation of the contract was not the remedy contemplated by the parties. This he has found in part from their previous dealings, not a custom in its legal sense, but a previous course of dealing- in regard to the very point in controversy. There had been prior contracts between these parties for the sale and delivery of iron, and the mode of redress for the delivery of iron of an inferior quality was, as found by the referee, to remove the same, and substitute other iron of the desired quality. • It does not matter that no such arrangement appears upon the face of the contract. If the parties acted upon it, we cannot say, in view of the situation of these companies, and the intimate connection between- them, the result of much of the stock in each being held by the same parties, that it was error in the learned referee to hold that the cancellation of the contract was not the remedy contemplated'by the parties.
It would serve no good purpose to enter upon a discussion of the details of the case. It is admittedly close, but we think the learned x-eferee has sufficiently vindicated his conclusions in his opinion upon the law and the facts.
Judgment affirmed.