223 F2d 626 Le John Manufacturing Company v. Phillips Television and Appliances

223 F.2d 626

96 U.S.App.D.C. 161

LE JOHN MANUFACTURING COMPANY, Inc., Appellant,

v.

PHILLIPS TELEVISION AND APPLIANCES, Inc., Appellee.

No. 12397.

United States Court of Appeals District of Columbia Circuit.

Argued March 30, 1955.

Decided April 14, 1955.

Mr. Thomas B. Scott, Washington, D.C., with whom Mr. Lawrence J. Simmons, Washington, D.C., was on the brief, for appellant.

Mr. Leon M. Shinberg, Washington, D.C., for appellee.

Before EDGERTON, BAZELON and FAHY, Circuit Judges.

PER CURIAM.

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1

By petition in the proceedings of the appellee bankrupt, appellant sought reclamation of certain merchandise on the ground that it delivered the merchandise in consignment transactions and thereby retained title. The referee in bankruptcy denied the petition upon a finding that 'the transactions were no more than absolute sales with the privilege * * * to return any unsold merchandise.' The District Court dismissed the petition for review of the referee's order and this appeal followed.

2

Appellant urges reversal on the ground that the above-mentioned finding is clearly erroneous. Some of the written evidence-- purchase orders and invoices-- tended to show that the transactions were sales. Other written and some oral evidence tended to show the transactions were consignments. Since the finding under attack does not 'rest exclusively on the written evidence or the undisputed [96 U.S.App.D.C. 162] facts,'1 our review is 'weighted by the trial court's assessment of credibility.'2 So viewed, we cannot say that the finding is clearly erroneous.3

3

Affirmed.

1 Orvis v. Higgins, 2 Cir., 1950, 180 F.2d 537, 539.

2 Bishop v. United States, 96 U.S.App.D.C. , 223 F.2d 582, dissenting opinion, page 589, citing Dollar v. Land, 1950, 87 U.S.App.D.C. 214, 218, 184 F.2d 245, 249; and Orvis v. Higgins, supra.

3 See United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746. Rule 52(a), F.R.Civ.P., 28 U.S.C.A.