Seal v. Carpets, Inc. ( 1962 )

HENRIOD, Justice.

Appeal from a no cause of action judgment. Affirmed with costs to defendant.

The action was tried to the court. Plaintiff was assignee of a Colorado firm, for purpose of suit, of a claim for carpets sold and delivered. It was conceded that the carpets were defective, and that the price sued for was that agreed to. On 'disputed oral and documentary evidence, unnecessary to detail here, the court found that 1) the Colorado firm, not a California importer, was the seller; 2) that because of replacement cf defective carpets and expense incident thereto, defendant had been damaged in an amount exceeding the purchase price; 3) was entitled to a set-off exhausting the price, and that 4) because of the seller’s reassurance of reimbursement for replacement costs, defendant had no duty to mitigate damages.

There appears ample, sufficient, substantial, competent and believable evidence, viewed favorably for defendant, to support the trial court’s conclusion.

WADE, C. J., and McDONOUGH, CALLISTER, and CROCKETT, JJ., concur.