51 N.Y. St. Rptr. 420

Francis Eckenroth et al., Resp'ts, v. Henry H. Vought, App’lt.

(New York Common Pleas, General Term,

Filed February 6, 1893.)

Appeal — Weight op evidence.

Where the only question at issue was the reasonable worth of certain pine posts, and the evidence given by the parties interested and expert witnesses was conflicting, but that of the plaintiff was sufficient, if believed, to warrant a finding in his favor, such finding will not be disturbed on appeal.

Appeal from a judgment of the district court of the city of New York for the fifth judicial district.

John J. McKelvey, for appl’t; Robert O'Byrne, for resp’t.

Bookstaver, J.

On the trial it was stipulated that the plaintiffs sold and delivered to the defendant the merchandise specified in plaintiffs’ bill of particulars and the defendant agreed to pay the reasonable value thereof, and that the reasonable value of the merchandise sold on September 3, 1890, was specified in the bill of particulars, and that defendant had paid on account $388.-23, which he claimed to be the reasonable value; but plaintiff claimed $101.27 in addition to the $388.23, out of which he admits there should be an allowance of $19.27. It was further admitted that of the fifty-four turned posts mentioned in the bill of particulars, thirteen were locust and reasonably worth $8.75 each, and the remaining posts, forty-one in number, were yellow pine, the reasonable value of which is the item in dispute in this action. It was further conceded by defendant’s attorney, that if plaintiffs succeeded on the trial, they could recover $82. The matter at issue is thus narrowed down to what was the reasonable value of the forty-one pine posts furnished to defendant by plaintiffs. The original contract under which the fifty-four posts were to be made and' delivered called for locust posts, but it was modified after the delivery of thirteen locust posts so that the forty-one remaining were to be of pine. Upon this question both parties offered considerable evidence, some of it being by parties interested, and other by expert witnesses. A careful review of the evidence does not convince us that there was such a preponderance in favor of the defendant that the judgment should have been in his favor.

There is quite sufficient evidence on behalf of the plaintiffs to warrant the finding of the court below and the judgment should, therefore, be affirmed, with costs.

Bischoff, J., concurs.

Eckenroth v. Vought
51 N.Y. St. Rptr. 420

Case Details

Eckenroth v. Vought
Decision Date
Feb 6, 1893

51 N.Y. St. Rptr. 420

New York



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