391 F2d 287 Gulf Banana Co v. Reefer Shipping Corporation

391 F.2d 287

GULF BANANA CO., Inc., Appellant,
v.
REEFER SHIPPING CORPORATION, Ltda., Appellee.

No. 24923.

United States Court of Appeals Fifth Circuit.

March 11, 1968.

Raymond T. Greene, Miami, Fla., for appellant, William B. Roman, Miami, Fla., of counsel.

W. F. Parker, Miami, Fla., for appellee.

Before BROWN, Chief Judge, and JONES and CLAYTON, Circuit Judges.

PER CURIAM:

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The single issue here is one of fact--whether freight for a cargo of bananas was agreed to be a fixed charge of money per case, or, a percentage of the bananas. It was decided against appellant by the district court on conflicting evidence. There, the case should have ended, but did not. The district judge was in a much better position to judge the credibility of the witnesses than are we. We can not say that he was clearly erroneous. 'Findings of fact will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Rule 52(a), Federal Rules of Civil Procedure. The trial court should be and is

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Affirmed.