¶2There is ho claim made in this action for damages to the premises in question, by misuse or neglect, nor has the referee allowed any damages on this account.
¶3Burpe alleges that he appointed Yan Eman his agent to take charge of the premises, to rent them, to collect the rent falling due, and to account for the same; that Yan Eman did take and assume the sole and exclusive control of said premises, from the 1st of Oct., 1858, until the 1st of Oct. 1860, but that he neglected and refused to rent the same, or any part thereof, although he had many opportunities to do so. The answer denies the allegations of the complaint.
¶4The referee finds that the parties entered into a contract, as alleged in the complaint, and that Yan Eman did take the entire charge and control of said premises from the first day of Oct., 1858, until the first day of Oct., 1860, and that during that time, said premises were worth the sum of four dollars per month.
¶5As conclusions of law, he finds “that Yan Eman, having accepted the agency, and taken full possession and control of the property, was bound to use due care and diligence to protect the same from injury, as well as to rent the same; that failing to do so, Burpe is entitled to recover of Yan Eman the sum of ninety-six dollars, with interest.” The referee does not find that the defendant had, or with reasonable diligence could have, collected any rent of said premises, or that he could have rented them to any person who could, or would, have paid any rent therefor.
¶6Yan Eman can only be held liable for a failure to perform his duty as Burpe’s agent, which was, so far as claimed in this action, to rent the premises if he could, with reasonable diligence, do so, and to collect and account for the rents. The referee, not having found that Yan Eman could have rented the premises, or that he had, or could have, collected any rents, the judgment is not sustained by the report, and must be reversed.
¶7*331Where the judgment is not warranted by the facts found by the referee, it may be reversed in this Court, though no exception was taken below, or case or bill of exceptions made. City of St. Paul v. Kuby, 8 Minn. 155.
¶8The judgment below is reversed.