The opinion of the court was delivered by

This is an action to recover the value of 154,000 feet of birch lumber, which the plaintiffs claim they sold the defendant. The defendant insists that he bought it of Cyrus Butler, and the question at issue is, of whom was the lumber purchased, the plaintiffs, or Butler ? The case was heard by a referee who has reported the facts in relation to the sale and delivery of the lumber to the defendant. He does not find whether the purchase of the lumber was made of the plaintiffs, or of Butler; but after stating the facts, finds from them “ that the plaintiffs are entitled to recover.” Prom the construction of the report, this is evidently nothing but a conclusion of law as to the legal liability of the defendant, from the facts found and expressly stated in the report. The County Court would have been justified in rejecting the report, or recommitting it, with directions to the referee to find whether the sale was made by the plaintiffs, or Butler. Neither party asked to have the report recommitted ; the presiding judge was disqualified ; and judgment was rendered pro forma. We shall dispose of the case upon the facts stated in the report, and such inferences as the County Court ought to have deduced from them.

We do not think that because the referee found the defendant liable, that he inferred all the requisite facts to make him liable, when the report is silent as to such inferences. The liability of the defendant depends upon the facts found and reported by the referee, and not upon facts which, in order to sustain the conclusion of the referee, we must presume he inferred from facts expressly found by him. He may not, in fact, have made such *332inferences, and still, mistaking the law, held the defendant liable upon the facts expressly found. But the construction we give to the report in this case is, that no such inferences were made by the referee, and that his finding as to the liability of the defendant was a conclusion of law upon the facts expressly stated. But if the finding can be construed as an inference of fact from the facts expressly found and reported, we think the referee erred in inferring that the lumber was sold by the plaintiffs to the defendant. “ Where the fact found by an auditor is merely an inference, or a fact which the law would infer from other facts found and stated by him, and he has made a mistake in the law, as applicable to the facts stated by him, and so erroneously inferred a fact to exist, the County Court may disregard his finding and make such an inference as the law would warrant from the facts stated, and render judgment acccordingly.” Briggs v. Briggs' Estate, 46 Vt. 571.

What judgment, then, should the court below have rendered upon the facts as reported ?

This court presumes in certain cases that the County Court inferred the existence of a certain fact or facts from facts found by the referee, when their existence is necessary to sustain the judgment which they have rendered, and when such inferred facts are not expressly found. Whether this rule applies to judgments rendered pro forma, quaere ; we are inclined to think it does not, but that in such cases, no presumptions are made by this court, that the County Court made any inferences of fact from the facts reported ; the judgment is formal, and made merely for the purpose of bringing the case into this court. But in cases where the rule does apply, we think the law is settled and well stated by Pierpoint, Ch. J., in Pratt v. Page, 32 Vt. 13 ; viz., “ When the court below is silent on the subject (of such inferences) and only sends up its decision, accompanied by the report on which it was based, this court will only presume, in aid of its judgment, that it inferred such facts from the report, as on an examination of it, it can see that the County Court ought to have inferred. It is not sufficient that the facts reported may have some tendency to establish the required fact, for in that event, it would be idle to *333bring cases of this kind here, for we apprehend that but few cases arise in which there cannot be something found in the report tending to sustain the decision below and further, “ The Supreme Court will only presume the County Court to have done that which, in this respect, upon an examination of the facts reported, it is apparent they ought fairly to have done. In all cases of this kind it is to be borne in mind, that the Supreme Court has before it all that the County Court had on which to base their decisions. And we think there is far less danger in adhering to the facts as found, and the fair and legitimate conclusions arising from them, as they are certified to us by the County Court, as the basis of our decision than to presume that the County Court have inferred the existence of other facts, not fairly to be presumed from the facts found, and of the existence of which that court has not seen fit to inform us.” And see Corliss v. Putnam, 37 Vt. 119. And it has been held that “ the County Court cannot, upon' the report of referees, infer, facts from other facts reported, as they may sometimes do upon the report of auditors.” Kimball v. Baxter, 27 Vt. 628.

The right of the plaintiffs to recover depends upon whether the defendant purchased the lumber of the plaintiffs, or of Butler. We think the facts reported show conclusively that the purchase was made of Butler, and not of the plaintiffs. The defendant bought of Butler in November, 1876, six hundred thousand feet of lumber, and this fact was known to the plaintiffs, and they agreed with Butler that if the defendant would take the lumber for which they are now seeking to recover, as a part of the six hundred thousand feet, they would furnish it, the defendant to inspect it before it left their premises at Hague, N. Y., and would allow him, Butler, a commission of five per cent, for selling, and the lumber was delivered as a part of the” six hundred thousand feet, to the defendant.

The plaintiffs supposed they were selling their lumber to the defendant, and he supposed he was bxxying it of Butler. It does not appear that Butler ever informed the defendant of the condi-, tion upon which the plaintiffs told Butler they would sell it, or *334gave him any information that would lead him to suppose that he was buying the lumber of the plaintiffs.

The deféndant supposed he was buying the lumber of Butler, and the conduct of the plaintiffs would tend to strengthen such supposition, as they took an order from Butler to the defendant in August, 1877, for part payment of it, and gave the defendant a receipt for three thousand dollars on account “ of lumber from Cyrus Butler as per his order,” acts inconsistent with the belief on their part, that they were selling the lumber to the defendant.

There is nothing in the report which tends to show, that any contract for the sale of the plaintiffs’ lumber, was ever made between them and the defendant, save the delivery of the lumber; and the presumption arising from such delivery is counteracted by the further fact, expressly found, that by the consent of the plaintiffs it was delivered as a part of the 600,000 feet sold by Butler to the defendant. There is nothing, then, in the report to warrant us in presuming that the court below inferred the fact that there was a sale of the lumber from the plaintiffs to the defendant, which fact must have existed to entitle the plaintiffs to a judgment.

We are aware that suits are sometimes maintained by, and in the name of, the party really in interest when the contract was made by another party, and the defendant supposed that he was dealing with the latter, as in the case of Smith v. Foster, 36 Vt. 705. But as was said in that case, it may be done if by so doing he, the plaintiff, “ deprives the defendant of no right he would otherwise have in his defence.” It would be manifestly unjust to allow the plaintiffs to recover, after they had permitted the defendant to deal with Butler as principal, and in good faith to pay him the amount due. Although it does not appear that the defendant has paid Butler, such is his claim, and to entitle the plaintiffs to recover under the rule referred to, and conceding that this case should be governed by it, we think it incumbent upon them to show that the defendant had not paid Butler, and so “ been deprived of no right he would otherwise have in his defence.”

The papers in the case, do not show whether it was referred generally, or to be heard and decided according to law. If it *335was a general reference, it is apparent from the report that the referee intended to follow the law, and that he erred in so doing ; and under such circumstances, the rule stated by Prentiss, Ch. J., applies ; viz., “ If the referee state all the circumstances of the case, and it appear, that he has decided contrary to law, the report, if it appear, that he meant to follow the law, will be set aside.” Johns v. Stevens et al., 3 Vt. 308 ; and in a later case by Peck, J.: “ When a referee does not state that he intended to decide according to law, and does not refer the question of law to the court, the court will not reverse his decision, unless it is apparent that he has violated some principle of right, whereby injustice is done.” Park v. Pratt et al., 38 Vt. 545.

Butler had authority from the plaintiffs to make sale and delivery of their lumber, under his contract with the defendant, but in such sale and delivery did not follow the directions given him. If either party is to suffer in consequence of his acts and neglect in that respect, it should not be the defendant, but rather the plaintiffs who employed him. Barber v. Britton et al., 26 Vt. 112. This disposition of the case renders it unnecessary to pass upon the legal questions which would have arisen had the sale been made by the plaintiffs.

Judgment of the County Court is reversed, and judgment for the defendant.