Union Hosiery Corp. v. J. Rabinowitz Co. ( 1932 )

WESTERFIELD, J.

This is a suit for $339, the alleged purchase price of 200 dozen pair of golf hose which plaintiff claims to have sold defendant through its agent one L. M. Oressy. The purchase of the golf hose is admitted by defendant, but it is claimed that. the price charged is $80 too much. In other words, instead of having bought the hose for $1.65 per dozen as plaintiff claims, defendant maintains that the .price agreed upon was $1.25 per dozen.

The trial court gave judgment for plaintiff as prayed for, and defendant has appealed.

Able counsel for defendant, conscious of the presumption which favors the correctness of the ruling of a trial judge upon a question of fact, points out that plaintiff, with the burden of proof resting upon it, is supported only by its salesman, Oressy; whereas two witnesses, Mr. Rabinowitz, defendant’s president, and Miss Adams, defendant’s stenographer, maintain the position of defendant. But the learned judge, a quo, found the testimony of Mr. Rabinowitz and that of Miss Adams unsatisfactory, and in his reasons for judgment, pointed to certain features of their evidence affecting its credibility. On the other hand, Oressy, it appears, had been a -salesman in similar 'lines for thirty-eight years. He noted the price agreed upon in his sales book at the time the sale was made. It is unlikely that he was in error or that he intentionally increased the price. The case is a close one. Happily the amount involved is small. The determining factor with us is the conclusion of the trial judge upon the question of fact involved.

Eor the reasons assigned the judgment appealed from is affirmed.

Judgment affirmed.