Hicks v. Riverside Fruit Co.

Foote, C. Plaintiff brought this action to recover from the defendant a sum of money alleged to be due on a contract to deliver certain peaches. The cause was tried by the court, and judgment rendered in favor of the defendant, and from that, and an order overruling her motion for a new trial, the plaintiff has appealed.

It is argued for plaintiff: 1. That the court erred in overruling the objection, interposed by her counsel, to a question propounded to Mr. Burt, a witness for the defendant, as follows: “ State only what you know about the matter.”

2. That the evidence did not justify findings 1 and 2,—she alleging that the evidence was uncontradicted that the fruit delivered “ was in good and merchantable condition,” according to the terms of the contract, which had been made between the parties.

As to the first contention, it is only necessary to say that the question was proper, and the plaintiff’s counsel pointed his objection at the question, and not at the answer thereto, which last was not responsive to the question, and no motion was made to strike it out.

The second point is untenable, for the reason that Mrs. Hicks, the plaintiff, testified in effect that the fruit delivered was bruised more or less, which fact rendered it impossible that it could have been in good and merchantable condition, as in other portions of her testimony she claimed it to have been. Where such a conflict exists, the findings should be upheld.

The judgment and order should be -affirmed.

[305]Hayne, C., and Belcher, 0. C., concurred.

The Court. For the reasons given in the foregoing, opinion, the judgment and order are affirmed.