
    Arthur D. Curran & another vs. Paul Whitin Manufacturing Company. Same vs. Bay State Coal Company.
    Suffolk.
    January 17, 18, 1905.
    —May 20, 1905.
    Present: Knowlton, C. J., Morton, Lathrop, Loring, & Braley, JJ.
    
      Practice, Civil, Exceptions.
    Where in a case tried before a judge sitting without a jury the evidence is conflicting the finding of the judge on a matter of fact is not open to revision by this court.
    Two ACTIONS OF CONTRACT by the same plaintiffs against different defendants, sufficiently described by the court. Writs dated April 10, 1908.
    In the Superior Court the cases were tried before Richardson, J., without a jury. In each case he found for the defendant: and the plaintiffs alleged exceptions.
    
      F. H. Smith, Jr., for the plaintiffs.
    A. P. Worthen, for the defendants.
   Lathrop, J.

The first case is an action for an alleged breach of a contract to buy two hundred tons of coal in the year 1903. The evidence is set out at length in the bill of exceptions. It consists partly of certain communications in writing, and partly of conversations by means of the telephone. There is a dispute as to what was thus said. The judge apparently believed the defendant’s testimony. If so, he was justified in finding that the contract was conditional on the receipt of the coal in two weeks, and there is no pretence that it was delivered in that time. Under these circumstances the finding of the judge on a matter of fact is not open to revision here. Olivieri v. Atkinson, 168 Mass. 28, and cases cited. No error of law appears. The plaintiffs’ exceptions must be overruled.

So ordered.

The second case is similar to the first, and is governed by the same principles of law.

Plaintiffs’ exceptions overruled.  