Robinson v. Russell 50 F. 114

Butler, District Judge.

The only question involved is one of fact, to wit: Did the respondent contract for the shipment of 400,000 shingles, as the libel avers, or simply for the number he might hav.e on hand, as the answer states ? The testimony is directly conflicting. The only persons present when the contract was entered into, were the master of the schooner, Mr. Robinson, William Harriss, of the firm of George Harriss, Son & Co., ship brokers, and the respondent. Messrs. Robinson and Harriss state the contract to have been for 400,000 shingles and are very positive about it, while the.respondent just as positively states it to have been for no given number, but such only as he might have—which he supposed would reach 400,000 or more. . George Harriss, Son & Co. were the ship’s brokers, and are pretty closely related to the respondent.' There are some circumstances referred to in the evidence which tend to shed a little light on the question involved, but its decision depends mainly upon the testimony of the three witnesses named, respecting what occurred on the occasion referred to, when the contract was made. A discussion of the evidence is unnecessary. It is sufficient to say that its weight is clearly, in my judgment, against the respondent. A decree must therefore be entered for’the libelant. If the parties cannot agree upon the damages the subject will be referred to a commissioner.