
    EDMUND B. KURSHEEDT ET AL. v. STANDARD BLEACHERY COMPANY ET AL.
    Argued February 15, 1910.
    Decided June 13, 1910.
    Whether or not an application for a rule to show cause will be granted where a writ of error lies may depend upon the nature of the error complained of and the manner in which it was raised at the trial.
    On plaintiff’s application for a rule to show cause.
    Before Justices Garrison, Swayze and Parker.
    For the rule, Ghauncey G. Parker and John TP. Griggs.
    
    Contra, John M. Bell and William B. Gourley.
    
   The opinion of the court was delivered by

Garrison, J.

This is an action in tort to recover the value of cotton cloth delivered by the plaintiffs to the defendants, to be bleached and returned to the plaintiffs in a finished state. The declaration charges that in the process of bleaching and finishing there occurred a stretching of the cloth to the extent of two per cent., so that when the defendants returned only the number of yards ■ of cloth invoiced to them in the unbleached state this two per cent, of increase was fraudulently retained by the defendants, who disposed of it to the plaintiffs’ competitors in business at prices that enabled them to undersell the plaintiffs as to their own goods. The quantity of cloth thus fraudulently converted is stated in the declaration at sixty-two thousand yards, at an average price of seven cents per yard.

Having in mind that the plaintiffs’ case consisted in the proof of a fraud that from its nature could be proved only by disconnected circumstances and the inference to be drawn therefrom, we think that there was excluded at the trial certain testimony tlie relevance and materiality of: which, in the aspect referred to, is a fair subject for discussion upon a rule to show cause. The present application is for such a rule.

The testimony referred to is (1) that which connected a Boston manufacturer named Eobertson with purchases from one of the defendants of cloth similar to the plaintiffs5 and the various circumstances connected therewith.

(2) That the plaintiffs5 cloth when finished at other bleacheries than the defendants5 yielded a definite stretch.

(3) The testimony offered by the plaintiffs at the close of the defendants5 case to meet the defendants5 evidence that plaintiffs5 cloth was not susceptible to the stretching claimed by the plaintiffs. There was other testimony of the same import that was offered and excluded.

The only question we have had is whether the plaintiffs ought not to be relegated to their writ of error upon the exceptions allowed at the trial. Bennett v. Trenton Pass. R. R. Co., 29 Vroom 556.

In view, however, of the element of discretion that entered into the last-mentioned ruling, which is of vital importance to the plaintiffs5 case, we have concluded that justice can be more effectively administered under the more flexible mode of review. The rule applied for by the plaintiffs is allowed.  