#### Edward Foote *et al.*plaintiffs and respondents, *vs.*William S. Roberts, defendant and appellant.

1. The court, in *lank,*will not weigh the evidence for the purpose of ascertaining whether the justice by whom the action was tried came to a correct conclusion; nor will it disturb a judgment, when there is any evidence to sustain it, even if, upon examination, it might think a different conclusion should have been reached. It is well settled that a finding upon conflicting evidence will not be disturbed by an appellate court. McCura, J. dissented.

2. It is not a valid objection, that a part of the plaintiffs’ claim is not embraced by the pleadings, where the justice finds that such claim was sustained by the proof. The court, at general term, has the right, either to treat the complaint as amended in such particulars, as the court at special term would have allowed, or to conform the pleadings to the facts as found by the justice.

(Before Monell, Garvin and McCunn, JJ.)

Heard February 12, 1867;

decided October 21, 1867.

Appeal by the defendant from a judgment entered upon a decision of the chief justice, by whom this action was tried, without a jury.

There were three causes of action stated in the complaint, as follows:

*First.*That the plaintiffs, at the request of the defendant, undertook to roll into gun barrels, straighten, cone-seat, splice and anneal, five tons of iron, containing about eleven hundred skelps; to roll and cone-seat each of such skelps for $1, anneal the same for six cents per barrel, and splice and straighten such of them as were found to require to be straightened or spliced, for fifteen cents for each barrel spliced, and one cent for each barrel straightened, which sums the defendant agreed to pay; that the plaintiffs agreed with the Trenton Iron Company to do such work at such prices; that the defendant refused to pay such sums, and the plaintiffs were sued therefor, and were obliged to pay, with costs and *18legal expenses, a certain sum ($1584.52,) which, with interest, the plaintiffs claimed to recover.

*Second:*That the defendant gave to the plaintiffs an order to import for him fifty tons of gun iron, at twelve "and a half cents per pound, which order the plaintiffs accepted, and under which they sold and delivered to the defendant a certain number of (286) bundles of gun iron, of a certain aggregate weight (29,859 pounds.) That 317 pounds were returned.

Upon this cause of action the plaintiffs claimed to recover a certain sum ($6284.21) with interest.

*Third.*That the plaintiffs, at the request of the defendant, undertook to roll into gun barrels, and to cone-seat, anneal, straighten and splice about a certain number -of (2680) skelps, at the prices stated in the first cause of action. That the plaintiffs agreed with the Trenton Iron Company .to do such work at such prices. That the defendant refused to pay such sums, and that the plaintiffs were compelled by suit to pay therefor a certain sum ($3304.43) - which, with interest, the plaintiffs claimed to recover.

The defendant, by his answer, claimed as a part of the agreement, stated in the .first cause of action, that the plaintiffs were to allow for work put upon them by the defendant, which proved to be defective, $1 for each-barrel. That of the 1100 barrels delivered, 325 were returned as defective; that the cost of each of said barrels returned was $2.36, in the aggregate $767; that upon 145 of such barrels, the defendant had put work, amounting to $145, the whole aggregate being $912, leaving due to the plaintiffs only the sum of $254.

As to the *second*cause of action, the defendant admitted the order for the fifty tons of gun iron; bqt averred that before any irón was imported thereunder, he countermanded the whole of said order. He denied that such *19iron was delivered, or any part thereof, or that the number of tons, mentioned in the *third*cause of action, were imported, or were delivered to him under such order or otherwise. He also denied the allegations in the *third*cause of action.

The action being tried by the chief justice, without a jury, he found as *facts:*That the plaintiffs agreed to pay $2.36 for each defective skelp. That there was no agreement to pay the plaintiffs for straightening or splicing. That 180 of the 1100 barrels, mentioned in the first cause of action, were returned to the plaintiffs as defective. He further found, that the defendant agreed to purchase the iron skelps mentioned in the third cause of action at the prices therein mentioned; and that the plaintiffs were to allow him' $2.36 for each defective barrel. That the whole of said 2680 skelps were delivered by the defendant, of which 963 were returned by him as defective. He deducted $424.80 from the aggregate price for the 1100 skelps, for defective barrels, and $2273.88 from the agreed price for the 2680 skelps, also for defective barrels. He gave judgment for the balance, with interest from the commencement of the suit. The claim ,stated in the second cause of action was wholly disallowed by him.

The defendant appealed.

*A. J. Vanderpoel,*for the appellant.

*George Bliss,*for the respondent.

*By the Court,*Monell, J.

The principal question in this case is, whether there is any evidence to support the judgment. The court in *bank*will not weigh the evidence for the purpose of ascertaining whether the learned justice came to a correct conclusion; nor will we disturb a judgment when there is any evidence to sustain it, even where, *20upon examination, we might think a. different conclusion should have been reached. It is well settled that a finding 'upon conflicting evidence will not be disturbed by an appellate court. *(Hall*v. Morrison, 3 *Bosw.*520. *Morris*v. *Second Avenue Railroad Co.,*8 *id.*679. *Bearss*v. *Copley,*10 *N. Y. Rep.*93. *Woodruff*v. *McGrath,*32 *id.*255.)

The contract fo roll, cone-seat an d anneal the 1100 skelps, was admitted by the defendant, with some qualification or alteration of its terms. * * * The number found to have been defective was 180. • That number seems to be quite as large as the defendant could have expected under the evidence. The only question in respect to the five tons, was the number of condemned guns ; when that was ascertained, the amount due to the plaintiffs was easily determined.

The real controversy in regard to the thirteen tons of skelp iron was, not whether there was a sale of it to the defendant, coupled with an agreement on his part to pay for rolling, cone-seating and annealing; but whether upon the transfer of his contracts by the defendant to Robinson, he (Robinson) did not assume the defendant’s contracts with the plaintiffs, and was not accepted by them as their debtor. [After examining the conflicting evidence upon this point, the court proceeded.]

Upon all this conflicting evidence, the justice found against the defendant; and after allowing at the rate of $2.36 for defective barrels, gave judgment in the plaintiffs’ favor for the balance. .

As to the objection that the claim to recover for the thirteen tons was not embraced by the pleadings, it is enough to say that the justice has found the claim was sustained by the proof; and we have the right either to treat the complaint, as amended, in such respect as the court at special term would have allowed, *(Bate*v. *Graham,*11 *N. Y. Rep.*237,) or now to conform the pleadings to *21the facts as found by the justice. *(Pratt*v. *Hudson River Railroad Co.,*21 *N. Y.. Rep.*305.) The question arising under the thirteen ton contract was fairly litigated, and the judgment in respect to it should not be disturbed on merely technical grounds.

I think the allowance of interest was correct, and that none of the exceptions taken by the defendant can be sustained.

I am in favor of affirming the judgment, with costs.

Garvin, J. concurred.

McCunn, J.

I must dissent in this case. This action was brought to recover, (1.) The cost of rolling one thousand one hundred gun barrels, which the plaintiffs claim they had, at the defendant’s request, procured to be rolled and worked from iron previously sold by them to him; (2.) The price • of thirteen tons of skelp iron, which they claim to have sold the defendant; and, (3.) The cost of rolling, coneseating, and annealing said thirteen tons of iron into gun barrels, which they also claim to have procured to be done at the defendant’s request.

Three questions are involved in this case.

*First.*Was the amount found by the court below, on the first cause of action, correct ?

*Second.*Was the learned justice right in finding, on the second cause of action, “ That, although the plaintiffs could not recover, under the contract between the parties, for fifty tons, yet he was justified in allowing for the value of the thirteen tons of skelp iron.”

*Third.*Was the court justified in finding that the defendant was responsible for the rolling, &c. of these thirteen tons of skelp iron into gun barrels ?

On a careful examination of the evidence touching these' *22questions, I think the court erred in finding for the plaintiffs.

The learned justice found, that one thousand one hundred barrels made out of the five tons, were delivered by the plaintiffs to the defendant; out of which number-three hundred and twenty-five were returned as defective; and after deducting the value of the number so returned, allowed $741.20 as due to the plaintiffs from the defendant. But he did not allow for the iron, or for work expended by the defendant- on the barrels so returned, to the amount of $487.20, which should have been deducted out of the $741.20, leaving only the sum of $254 to be found due by the defendant to the plaintiffs, being the proper amount due on the first count. In this respect the court erred.

The next and principal question in this case, the disposition of which will, in my judgment, end the controversy, is, “ Did the sale of the thirteen tons of skelp gun iron, from the plaintiffs to the defendant, take place ?” I am clearly of- opinion it did not. The plaintiffs undertake to show that a sale of thirteen tons of iron did take place from their firm to the defendant; but, on a careful examination of all the testimony, it will be seen that such was not the case.

[The learned judge then proceeded to examine the testimony, to show that a prior order for fifty tons of iron skelps had been canceled by the parties, and proceeded.] In my mind, here the case should have ended. Because the complaint only asks, and the plaintiffs’ counsel, at the trial, only demanded, first, the value of the labor expended on the first five tons ; next, the value of thirteen tons delivered under the fifty ton contract, as part of the said contract; and, lastly, the value of the labor expended on said thirteen tons.

So that the court below made a mistake when it found *23for the value of thirteen tons, separate and apart from the contract of fifty tons, and for work and labor expended thereon. The object of that contract was to protect the defendant from bad iron and unskillful workmanship; and to hold that these thirteen tons were not delivered under the fifty ton contract, and subject to its provisions, would be to deprive the defendant of the safeguards provided in the contract, and would be tantamount to compelling the defendant to take any and every trash of barrels the plaintiffs might deliver. The contract was made, and its stipulations, on the part of the plaintiffs and defendant, entered into, with the express purpose of providing against bad iron and unskillful workmanship, so as to enable Roberts to supply the government with muskets such as would pass inspection by government officers. The propriety of such a provision is shown by the fact that the barrels furnished from the thirteen tons of iron, as a whole, were nearly worthless. If that contract was annulled between the parties, what safeguard had the defendant against any imposition the plaintiffs might practice upon him in making these barrels ? Rone whatever.

[The learned judge then discussed the evidence, to show that there was no contract for the purchase of the thirteen tons, different from that for the fifty tons, and added.]

The letter of the 11th of October is clear on this point; and it conclusively shows that the plaintiffs, seeing the defendant would not take the barrels, sold and transferred them to Robinson, the defendant’s successor; and this theory is fully borne out by the letter of the defendant to the plaintiffs, in answer to one of the 11th of October. Until that time, the plaintiffs looked to Robinson for payment; and this letter was never answered. Indeed all the written evidence, as well as all the oral evidence, fastens *24the responsibility for the thirteen tons on Bobinson ; and if Bobinson .had been solvent, I am inclined to believe this action would not have been brought against the defendant.

[The learned judge then compared the testimony of one of the plaintiffs with that of the defendant and others, and concluded that the whole of his evidence was of such a character as to throw grave doubts on its truth; that it was an effort to shift the responsibility of a debt upon a solvent person when the real debtor was insolvent. He also compared the testimony of such plaintiff respecting an order in writing given by the defendant in his presence, to Mr. Brown, with that of the latter ■ two and another witness, (Cameron,) and concluded that their testimony was clear, and without effort, while that of the plaintiffs was confused, and, apparently, fabricated; that other illustrations from the evidence could be offered to show the mistake made in rendering judgment for the plaintiffs. He then referred to affirmative evidence, to show that no contract but that for fifty tons was made, after that for the five, and thought that all the witnesses, both for the plaintiffs and defendant, tended that way; against this strong current stood only the testimony of one of the Footes; and that given in such a loose, hesitating manner, that it would be unsafe to found any judgment or-decree upon it.]

In disposing of this case, I have not touched the question as to whether the court below was justified in allowing the plaintiffs to recover for goods sold and delivered, and work and labor done and performed generally, under a complaint framed upon a special contract, and when no such claim for goods sold and delivered was insisted upon at the trial. My determination of'the'case on the merits, renders such an examination unnecessary.

*25I am, therefore, of opinion that the judgment should be reversed, unless the plaintiffs consent to reduce the amount claimed by them to the sum of $254; in which event judgment should be affirmed for that sum, without costs.