Opinion
May 25, 1938.
Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment modified on the law and the facts by reducing the recovery to the sum of $2,307.41, with interest from September 15, 1936, and as modified affirmed, without costs of this appeal to either party. Certain finding of fact and conclusion of law disapproved and reversed and new findings and conclusion made. Memorandum: We think the finding that defendants removed 192,021 feet of pipe in pieces more than eight feet in length and 348,320 pounds of scrap is against the weight of the evidence. We are of the opinion that, under the evidence, the weight bills are controlling both as to the amount of pipe and scrap removed and as to the weight thereof, and that the material was weighed on defendant's scales by mutual consent of the parties, and we so find. All concur. (The judgment is for plaintiff in an action to recover value of merchandise.)