
    KIRSH NOVELTY CO., Inc., v. MID-ATLANTIC GLASS CO.
    No. 5535.
    Circuit Court of Appeals, Fourth Circuit.
    Dec. 20, 1946.
    William Bruce Hoff, of Parkersburg, W. Va. (H. O. Hiteshew, of Parkersburg, W. Va., on the brief), for appellant.
    Ernest R. Bell, of Fairmont, W. Va. (Harry E. Moats, of Harrisville, W. Va., and L. T. Eddy, of Fairmont, W. Va., on the brief), for appellee.
    Before PARKER and SOPER, Circuit Judges, and COLEMAN, District Judge.
   PER CURIAM.

This suit was brought by a wholesale dealer in glassware located in New York City for the alleged failure of a manufacturer located in West Virginia to ship goods in accordance with accepted orders. •The controversy is one of fact and involves the issue whether under the stress of war conditions the manufacturer failed to ship goods covered by accepted orders or whether, on the other hand, the dealer committed the first breach of contract by failing to pay for goods which it had received. The issue was submitted to the jury which found against the plaintiff and delivered a verdict for the manufacturer in the amount of the unpaid bills. Upon this appeal the plaintiff claims that the evidence was so clearly in its favor that it was entitled to a directed verdict' for the loss of profits’ on the undelivered goods. Our examination convinces us that a jury question was involved for the reasons fully set out in the opinion of District Judge Harry E. Watkins, (65 F.Supp. 298) in overruling the motion of the plaintiff to set aside the verdict and judgment for the defendant and to enter a judgment for the plaintiff, or, in the alternative, to grant a new trial.

Affirmed.  