The case was tried by the court without a jury; the trial court saw and heard the witnesses; he did not accept the testimony of the sole witness for plaintiff, the buyer, but accepted defendant’s evidence, properly found that plaintiff failed to prove any damages, and reached a just result.
The judgment in defendant’s favor should be affirmed, with costs.
(dissenting). I think there was a sufficient ambiguity in the contract to warrant taking parol evidence as to the intention of the parties, particularly as to whether the presence of the material on the ship was an assurance by the defendant, or only an assumption by both parties, so that if the assumption proved to be contrary to the fact the contract was vitiated. The trial court did not pass on this issue. I also think that the evidence as to the market value was not so slight as to be disregarded. There should be a new trial, both as to the issue of the breach and damages.
Dore, Callahan, Van Voorhis and Breitel, JJ., concur in Per Curiam opinion; Peck, P. J., dissents in opinion.
Judgment affirmed, with costs.