The judgment in this case must be sustained, unless we dis*208turb findings of fact confirmed by tbe court below. This we are unwilling to do, not having been persuaded that there is error in any of the findings or conclusions of the careful and learned referee.
The second and fourth specific findings were:
“ In a conversation had between the agents of the plaintiff and the defendant, in September, 1896, the plaintiff’s representative stated, in substance, to the defendant’s representative that the defendant, buying from the plaintiff twine in carload lots for current needs, would be charged therefor the lowest current price charged the plaintiff’s other customers, competitors of the defendant, purchasing at the same time and in like amounts and under the same conditions. No time was fixed during which this arrangement should continue, but, in fact, the plaintiff made all charges to the defendant on this basis.” “ The parties did not agree, as contended by the defendant, that the defendant should pay for twine bought by it from the plaintiff the smallest amount per pound paid by any of the defendant’s competitors for twine shipped to such competitors at the same time by the plaintiff, regardless of whether such twine was bought by such competitors in carload lots or in large quantities at a fixed price for future delivery as needed and regardless of when such contracts for future delivery were made.”
A further finding, not excepted to, was :
“ The prices thus charged were duly paid by the defendant 'to the plaintiff except those for the shipments of February 24, 1899, and April 10, 1899, to recover which the suit is brought, and in no instance was a lower price charged to any of the plaintiff’s other customers, competitors of the defendant, purchasing at the same time, in like amount and under the same conditions.”
In view of the foregoing findings, the learned referee rightly refused to sustain the contention of the defendant, that other customers of the plaintiff, with whom it had made contracts for future deliveries, and to whom it was bound to deliver at contract prices, notwithstanding the rise in the market, should be regarded as “ plaintiff’s other customers, competitors of the defendant, purchasing at the same time and in like amounts and under the same conditions,” and that the plaintiff could *209charge it no higher prices than such customers paid for the yarn delivered to them from time to time in pursuance of said contracts with them.
Plaintiff’s statement contains not only an averment of an express contract with the defendant, but also one that it became liable to pay wha’t was the just and fair market value of the shipments of twine, and the conclusion of the referee was correct, that, “ under such circumstances, it is not fatal to the plaintiff’s action that the evidence fails to show the existence of a contract as alleged.”
Judgment affirmed.