Opinion
(2272)
Argued October 14, 1983
Decision released November 22, 1983
Action to recover damages for goods allegedly sold to the defendant, brought to the Superior Court in the judicial district of New Haven, where the defendant filed a counterclaim alleging untimely delivery; the matter was tried to the court, M. Hennessey, J.; judgment for the plaintiff on the complaint and on the counterclaim, and appeal by the defendant. No error.
John W. Barnett, for the appellant (defendant).
James R. Fogarty, with whom, on the brief, was Robert A. Epstein, for the appellee (plaintiff).
The plaintiff sued the defendant for payment for electric motors sold, delivered to and accepted by the defendant. The defendant admitted the sale, delivery and acceptance, and filed a special defense and counterclaim to the effect that the delivery was untimely. At trial, the parties stipulated that the defendant owed the plaintiff $26,342.19 for the motors delivered and accepted. The sole issue was whether, under the counterclaim, the delivery was untimely, on which the defendant had the burden of proof. The trial court issued a factually detailed memorandum of decision, a fair reading of which is that the defendant did not establish untimeliness. The court rendered judgment for the plaintiff on the complaint in the stipulated amount and for the plaintiff on the counterclaim, from which the defendant appealed.
This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, 2(c).
The essential factual findings on the issue of untimeliness of delivery are supported by the evidence and are not clearly erroneous. Practice Book 3060D; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We have considered the arguments of the defendant on the appeal and find them to be without merit.