
    Scofield and others, Respondents, vs. Claggett and another, Appellants.
    
      October 20
    
    November 3, 1885.
    
    
      Sale of chattels: Evidence.
    
    A finding of the trial court that plaintiff contracted to deliver only one car-load of oil to the defendant, is held to be sustained by the evidence.
    APPEAL from the Circuit Court for Wmnebago County.
    Eor the appellants the cause was submitted on the brief of James Freeman.
    
    Eor the respondents there was a brief by Weisbrod, FLarr-shaw & Ffemtt, and oral argument by Mr. Weisbrod.
    
   Eton, J.

This appeal is by the defendants from a judgment in favor of the plaintiffs. The plaintiffs, who are partners, are refiners of and dealers in oil, at Cleveland, Ohio. The defendants, who also are partners, are druggists and dealers in oil, at Oshkosh, in this state.

In the fall of 1880 the defendants ordered a quantity of oil of the plaintiffs, who sent them a car-load on such order, which the defendants received and paid for, less $124.15. There is no controversy as to the price and value of the oil, but the defendants claim that they ordered from the plaintiffs two car-loads, and they kept back the above sum as damages for the non-delivery of another car-load.

The plaintiffs deny that they agreed to send more than one car-load, and brought this suit to recover the unpaid balance of $124.15. The only question in controversy in the case is, Did the plaintiffs agree to ship to the defendants two car-loads of oil or but one. . The cause was tried by a referee, who found and reported that they agreed to ship but one car-load. The court confirmed the report of the referee, and gave judgment for the plaintiffs for the sum claimed.

The contract between the parties is contained in several letters and telegrams which passed between them concerning the sale and purchase of the oil. These have been examined, and we are unable to find in them any satisfactory proof that the plaintiffs agreed to sell the defendants more than one car-load. We are of the opinion, therefore, that the evidence supports the finding of the referee and the court, and hence that the judgment is right. The case turns entirely upon a question of fact, and it would be useless to state or discuss in this opinion the testimony bearing upon it.

By the Cow't.— The judgment of the circuit court is affirmed.  