N. O. Coal & Bisso Towboat Co. v. Mermelstein ( 1929 )

WESTERFIELD, J.

This is a suit for §121.95, the alleged value of certain brass said to have been sold and delivered defendant by plaintiff. Defendant denies having bought or received the brass.

On behalf of plaintiff, its president, Wm. A. Bisso, testifies that an agreement of sale was entered into with defendant in plaintiff’s place of business and that thereafter the brass was removed by trucks. He is to some extent corroborated by his son, Wm. A. Bisso, Jr., but neither are able to testify that the brass was in fact delivered to defendant. On the other hand, the defendant denies any knowledge of the transaction and says that it is the custom in that line of business to pay spot cash on delivery and that he had followed this custom in several other transactions which he had with the plaintiff. He also testifies that he has two brothers in the same line of business intimating that the brass might have been bought by one or the other of his brothers.

The trial court evidently concluded that plaintiff had failed to connect the defendant with the sale since judgment was rendered in favor of defendant dismissing plaintiff’s suit. We are unable to say that the court was manifestly in error, and, consequently, the judgment will be affirmed.

For the reasons assigned it is therefore, ordered, adjudged, and decreed that the judgment appealed from be and it is affirmed.

JANVIER, J., having been counsel, takes no part.