Guaranty — Practice.
On suggestion that a material fact was omitted from the referee's report, the plaintiff was permitted to move in the court below to recommit the report for further hearing.
FROM MERRIMACK CIRCUIT COURT.
[fn*]CUSHING, C.J. [fn*] SMITH, J., did not sit.
It seems clear to me that by this contract the defendant intended and expected to guarantee the payment for goods to be sold after its execution, and not otherwise. The report of the referee does not find the fact that the goods were delivered after the execution of the guaranty. It is not the province of this court to find the facts, and if it were so, I should infer from the report that these goods were delivered before the execution of the guaranty.
Unless, therefore, the plaintiff can have the report recommitted, for the purpose of determining this, and other facts desired in the court below, there must be
Judgment for the defendant.
LADD, J., and STANLEY, J., C. C., concurred.