207 F2d 597 David Davies v. Potomac Fish & Oyster Co

207 F.2d 597

DAVID DAVIES, Inc.

v.

POTOMAC FISH & OYSTER CO.

No. 11754.

United States Court of Appeals,

Sixth Circuit.

Oct. 23, 1953.

John L. Davies, Jr., Columbus, Ohio, for appellant.

John J. Chester and Robert P. Duncan, Columbus, Ohio, for appellee.

Before ALLEN, MARTIN and McALLISTER, Circuit Judges.

PER CURIAM.

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1

This appeal has been heard and considered on the oral arguments and briefs of attorneys and on the record in the case;

2

From which it appears, upon the basis of the district court's findings, resting on substantial evidence and not clearly erroneous, that the appellant failed to examine the oysters involved as the subject matter of the litigation within a reasonable time after their receipt, nearly three weeks having elapsed before anything definite was done by the defendant; and that, inasmuch as the burden rested upon the appellant to prove that the oysters were in a dirty or spoiled condition when received and that the only real testimony concerning this was that of the witness Leonard who testified that the color of the water in which the oysters were lying was caused by decomposition and not by dirt, the oysters were not diligently tested while in possession of the appellant;

3

And in view of the other testimony reviewed in the order of the district court overruling the motion for a new trial;

4

The judgment of the district court is affirmed.