Demotte v. Whybrow

• Decision Date: 14 January 1920
• Docket Number: 77.
• Citation: 263 F. 366
• Parties: DEMOTTE v. WHYBROW.
• Court: U.S. Court of Appeals — Second Circuit

263 F. 366

DEMOTTE v. WHYBROW.

No. 77.

United States Court of Appeals, Second Circuit.

January 14, 1920

This action was originally brought in the Supreme Court of the State of New York for New York County. The defendant, who is a citizen of France, removed it to the United States District Court. After the cause was removed, the attorneys for the parties stipulated in writing that, as the action involved the examination of a long account, a referee might be appointed by the court to hear and determine the issues 'with the same force and effect as if the said issues were heard and determined by the court. ' The court accordingly entered an order referring the case to Luke D Stapleton, to hear and determine the issues and report. On the coming in of his report the District Judge entered an order confirming it and for judgment.

Wing &amp Russell, of New York City, for plaintiff in error.

Otto A Samuels, of New York City, for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The plaintiff below has brought an action to recover the sum of $41,965.35 alleged to be due and owing from defendant for work and labor done, and services and materials furnished him, between January 14, 1918, and March 30, 1918, in the alteration of certain premises in the city of New York. The referee found that the amount unpaid and due to the plaintiff was the sum of $41,748.35, and he allowed the plaintiff interest on this sum in the amount of $2,517.93, and the total amount for which judgment has been entered, including costs and interest, is $47,124.17.

As the testimony was heard before a referee, by stipulation, the only question now open is whether the referee's findings support the judgment which has been entered. David Lupton's Son's Co. v. Automobile Co. of America, 225 U.S. 489, 32 Sup.Ct. 711, 56 L.Ed. 1177, Ann. Cas. 1914A, 699. In Am. & Eng. Encyc. of Law, vol. 24, p. 236, it is said:

'The findings of fact of a referee have every reasonable presumption in their favor. They are to be regarded by the court as having the same force and weight as a verdict of a jury, and should not be disturbed if the evidence is conflicting, and they are supported by some evidence, or are not clearly against the weight of evidence.'

In Fifth Nat. Bank of City of New York v. Lyttle, 250 F. 361, 162 C.C.A. 431, this court declared that the findings of fact made by a referee, where the reference is to hear and determine, have the effect of a verdict of a jury.

At one time it was considered doubtful whether a case tried in a federal court by a referee in states where such a practice exists could be reviewed in an appellate court; appellate procedure being regulated by the acts of Congress. See Boogher v. Insurance Co., 103 U.S. 90, 97, 26 L.Ed. 310. The facts found by the referee, when confirmed by the court, are treated as the finding of the court. 'In that way alone,' said Chief Justice Waite in the Boogher Case, 'can it with propriety be said that the facts have been determined judicially by the court, so as to be made the foundation of a review here of the questions of law properly raised on them in the record.'

The complaint was drawn upon the theory of quantum meruit. The referee has not found that there was an agreement as to the price of the work, and based his finding upon the theory of quantum meruit. He states his findings as follows:

'III. That the reasonable value of the labor, services, materials, goods, wares, and merchandise, so furnished the defendant by the plaintiff, is forty-six thousand eight hundred and sixty-three and 05/100 ($46,863.05) dollars.

'IV. That no part thereof has been paid, except the sum of five thousand ($5,000) dollars, and the defendant is entitled to a further credit in the sum of one hundred and fourteen and 50/100 ($114.50) dollars, for bath tubs, basins, mirrors, and scrap metal received by plaintiff from defendant at the agreed price of said sum of one hundred and fourteen and 50/100 ($114.50) dollars, and that said sum became due and payable on the 30th day of March, 1918.'

He states his conclusion of law as follows:

'I find, decide, and report as a conclusion of law that the plaintiff is entitled to recover from the defendant forty-one thousand seven hundred and forty-eight and 55/100 ($41,748.55) dollars, with interest thereon calculated to the 15th day of March, 1919, amounting to two thousand five hundred and seventeen and 93/100 ($2,517.93) dollars, in...