
    John Jarrard, App’lt, v. Randal M. Bissell et al, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    'Trial—Findings—Will not be interfered with if within the evidence.
    Where a case is tried by the court, and the findings of fact are within the evidence, and this court cannot see that they are wrong, although upon some points the evidence is not as satisfactory as could be desired, this court will not interfere.
    Appeal from judgment in favor of plaintiff.
    
      Peter S. Carter, for app’lt; J. Homer Hildreth, for resp’ts.
   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, {Hinton 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 allowance for shrinkage, and found that he delivered fifty-six 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.

Learned, P. J., concurs.  