
    No. 2150
    Second Circuit
    LINDSAY CO v. CHAMBERS
    (Apr. 8, 1927. Opinion and Decree.)
    
      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial court as to matters of fact, unless clearly erroneous, will be affirmed.
    Appeal from the City Court of the City of Shreveport, La. Hon. David E. Samuels, Judge.
    Action by The Lindsay Company, Inc., against J. A. Chambers.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wallace, Lyons •& Peters, of Shreveport, attorneys for plaintiff, appellee.
    E. W. & P. N. Browne; P. O. Chavez, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OP PACTS

REYNOLDS, J.

This is a suit on- an open account for a balance of $134.25, for office stationery ordered by plaintiff for defendant at the latter’s request.

Defendant denied liability and especially alleged that he did not order the quantity of stationery 'tendered to him by plaintiff; that plaintiff promised to submit a proof of the embossing and of the ¡printing and that none was submitted and that the work was unsightly and unsatisfactory.

On these issues the case was tried and there was judgment for the plaintiff and defendant appealed.

OPINION

The question to be decided in this case is one of fact, namely, whether the stationery tendered by the plaintiff to defendant and refused by him was in quantity and quality as ordered by defendant. .

J. L. Lindsay, the president of the plaintiff testified positively that the stationery was ordered by defendant and that both in quantity and quality it was as ordered by defendant.

Defendant swears positively to the contrary.

The testimony of Mr. Lindsay is corroborated by that of Mr. M. A. Reinberger, pages 28, 29, 30.

“Q. Were you present when Mr. Chambers called at the office when this matter was- — this material was ready to be delivered to him?
“A. Yes, sir.
“Q. Did Mr. Chambers make any statements in your presence about that material?
“A. Yes, sir.
“Q. What did he state?
“A. I had him back in the shipping department. We had the stuff in a big crate ready to deliver at his office. We called him on the phone t.o find out where to deliver it. He came down there and said that the embossed work was not what he wanted. I asked him about the others, and he said: ‘It is all right.’ I said, ‘Where shall we deliver it?’ He said that he was either going to Dallas or .Port Worth and that when he came back he would give us delivery instructions on it.
“Q. Did he see the stationery sitting on the floor there?
“A. Yes, sir. He said: ‘You sure have got lots of it, haven’t you?’
“Q. Did he say anything about the amount, whether there should be ten thousand or one thousand?
“A. No, sir.
“Q. Did he state-that he had not ordered that much material?
“A. No, sir. He advised me that when he came off his trip he would let us know where to deliver and I reported those instructions to the office.”

This -testimony strongly corroborates that of the president of plaintiff, Mr. Lindsay.

As to the embossed stationery, plaintiff admits it was ordered but contends it was not a first class job.

' Mr. Lindsay swears positively that it was just as defendant ordered it.

The, testimony of one of these witnesses sets off that of the other and leaves nothing proved on the point. The credibility of neither of the witnesses is 'impeached.

It therefore follows that defendant having ordered the stationery had either to accept and pay for it or prove that in quality it was not as ordered. This, defendant failed to do.

The trial court heard the witnesses testify and, observed their manner of testifying and decided the question of fact in favor of the plaintiff. We cannot say that his judgment was erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.  