majority">By the court, Gould, Justice.

It is certainly true, that upon a finding of fact by a referee, as upon a similar finding by a jury, this court, on appeal, does not disturb his finding where there is ordinarily fair evidence to support it. But it is also true, that we set aside the finding of a jury, or the report of a referee, when either is clearly against the body of the evidence, although there may be some evidence to support it. And in this case, it seems to me almost impossible to say, from the testimony of the plaintiff himself that there was any such contract as he asserted at first, and as the referee* has found. In March, before the river was open—when the property was not in view and not even in the plaintiff’s possession—the conversation amounts to no legal contract. When the river was open, the utmost extent of plaintiff’s right to deliver, was to deliver to Warner. In order to avoid this, and to make a delivery to Casey bind the defendant, he introduces a telegram (which he authorized Casey to send in his, plaintiff’s, name) that Warner’s barge was ready to take the bones, and receives a reply to deliver on hoard Warner’s harge. This the plaintiff did not do. He claims, indeed, that he delivered by Warner’s direction, and under Warner’s supervision, and almost (but not quite) to Warner. Warner’s authority to do anything but receive the bones himself, was to he proved by plaintiff. So far from its being proved at all, it is expressly denied by Warner, who must know; and there is absolutely no proof tending to show any such authority. A " deceptive telegram furnishes no foundation for such power.

Further, the existence of a contract to make final and binding a delivery (even to Warner) on the dock at Albany, though sworn to by the plaintiff in terms, and probably according to his understanding of what makes a contract, is strangely and fatally inconsistent with his sending or delivering (and for this point it is quite immaterial which) the shipping statement, Exhibit C., saying “ When you weigh . them, if they overrun you will not be sorry, and if they fall *436short a few pounds, I think I can make it Up.” Can this, by any possibility, mean otherwise than that the delivery waS not binding and complete until the defendant weighed them at New York ? Such seems to me the necessary Construction, without the defendant’s direct testimony that such was the agreement. If it were so, it puts an end to all chance for the plaintiff to recover in this case ; since then, the payment of $900 made in New York, was made on or procured by a statement deliberately and intentionally false.

Aside from this, there could not easily be a delivery to Warner without Warner’s knowing something of it. And that he knew nothing of any such delivery is fully proved, notwithstanding the plaintiff’s attempt to say he did deliver to Warner.

The conversation of March being, at that time, not a legal contract, within the statute of frauds, it never could become such. ' The utmost that it could avail would be, that a subsequent full and accepted delivery might have been so made, as necessarily to refer to that conversation for its cenditións and price ; and then the law might say that the accepting of delivery made those conditions and price part of a binding contract, to be construed as if made at the time of delivery. But all the elements of a binding contract seem to be wanting in this case.

Owing to the leading idea on which the referee tried this case, he made, as I think, some erroneous decisions as to the admission and rejection of evidence, which must of themselves be ground for a new trial, even were my prior positions not sound. At folio IT, the witness was not ' allowed to answer the question, “ did you deliver these bones to captain Casey ?” though he had, on direct examination, testified in the same terms as to delivery to Warner ; and this question was on cross-examination. Nor does the subsequent question, as he answered it, do fully away with the exception. Also, at folio 24, the question as to delivery, *437.(Exhibit C.,) was a proper question; it was on a cross-examination, and going both to his accuracy, and to the effect of the paper in showing how he must have understood the contract; as, if its delivery accompanied his false representations as to the arrival of the bones, it would tend very strongly to show that he then understood that the bones must be weighed in New York, before acceptance, and that up to that time there was no complete contract.

On the whole, it seems to me the judgment on the report m,ust be reversed. A new trial of course is to be ordered.

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