
    Jarrard v. Bissell et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Appeal—Beview—Weight of Evidence.
    Where, in a trial by the court, the testimony is doubtful or conflicting, but the findings are within the evidence, the judgment will not be disturbed.
    Appeal from special term, Clinton county.
    
      Action by John Jarrará against Randal M. Bissell and Nathan Lapham, to recover on a contract for freight of a cargo of potatoes transported on plaintiff’s canal-boat. On trial by the court, there was judgment for plaintiff, after allowing defendants’ counter-claim of non-delivery, from which judgment, and the order of the court denying a motion to dismiss the counterclaim, plaintiff appeals.
    Argued before Learned, P. J., and Landon, J.
    
      Peter S. Carter, for appellant. J. Homer Hildreth, for respondents.
   Landon, J.

The plaintiff sued to recover the balance upon the contract price for freight of a cargo of potatoes received by him from the defendants - upon his canal-boat at Port Jackson, Clinton county, and transported to New York, and delivered to the defendants’ consignee there. The case was tried by the court without a jury. The main question was whether the plaintiff delivered all the potatoes he received. The court made aliow-ance for shrinkage, and found that he delivered 56 barrels less than he received, and charged him with the value thereof. The testimony is not as satisfactory as to the amount received as could be desired, and the trial court was oppressed with this circumstance. We must affirm the findings of fact, because they are within the evidence, and we cannot see that they are wrong. Of course, if the plaintiff did not deliver all the cargo he received and agreed to deliver, he must excuse himself or pay for the deficit. No error of law to the prejudice of the plaintiff was committed. Judgment affirmed, with costs.  