Opinion
Submitted February 5, 1886
Decided October 5, 1886
G.A. Scroggs for appellant. Geo. H. Humphrey for respondent.
The point is elaborately and ably discussed in the opinion of SMITH, P.J., at General Term, that the bringing of the action by the plaintiff against Fisher Whiting for the contract price of the goods sold to them, was not an election to affirm the contract, which was final, and precluded the plaintiff subsequently bringing this action in disaffirmance of the contract, because the first action was abandoned and discontinued before trial or judgment, and no provisional remedy or other benefit was obtained by the plaintiff therein, nor was the position of the parties changed thereby.
We do not, however, deem it necessary to pass definitely upon that point, for the reason that there appears in the case no finding or request to find that, at the time of the bringing of the action on the contract, the plaintiff had knowledge of the fraud which entitled it to rescind the sale. This fact was essential to put the plaintiff to its election of remedies, and it should appear in the findings of fact, to disclose error in the conclusion that the bringing of the action was not a waiver of the right to disaffirm the contract.
The burden of showing error in the conclusion of the referee is on the appellant, and nothing is better settled than that this court will not, for the purpose of reversing a judgment, look into the evidence to supply a fact not found. It is only for the purpose of affirming a judgment that the court will look at the evidence to supply a fact not specified in the findings.
The mere bringing of the action for the price of the goods, unless it was brought with knowledge of the fraud, was not a binding election, or a waiver of the right to rescind, and no error in the conclusion of the referee is disclosed by the record.
The point made in the dissenting opinion of BARKER, J., at General Term, that the finding of the referee that before the commencement of this action the plaintiff demanded of the defendant possession of the goods, and the defendant refused to surrender them, is unsupported by the evidence, is not available to the appellant on this appeal. If the finding was unsupported by any evidence, it was an error of law, reviewable in this court; but in order to raise the point here, it was necessary that the finding should have been excepted to, and the case contains no such exception.
The other points are fully discussed and, I think, properly disposed of in the prevailing opinion at General Term.
The judgment should be affirmed.
All concur.
Judgment affirmed.