238 F2d 619 Lopes v. Pacific Tile & Porcelain Company

238 F.2d 619

Jimmie LOPES, Appellant,



No. 16139.

United States Court of Appeals Fifth Circuit.

November 27, 1956.

David Ball, Jr., Houston, Tex., for appellant.

John B. Abercrombie, Baker, Botts, Andrews & Shepherd, Houston, Tex., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.


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The suit was for damages claimed to have resulted from the failure of defendant to deliver clay tile products purchased and paid for by plaintiff. The defendant denied it had made and breached the contracts as alleged by plaintiff and filed a counterclaim against plaintiff for clay tile products delivered to and not paid for by him.


On the issues thus joined, the cause was tried to the court without a jury and, on full findings of fact and conclusions of law, the district judge, sustaining in part and rejecting in part plaintiff's demands and finding for cross-plaintiff on its demand for a sum in excess of that found to be due plaintiff, entered judgment for defendant, as cross-plaintiff, for the difference, amounting to $3,205.08.


Appealing from the judgment, plaintiff is here insisting that it should be reversed and judgment here rendered for him. The defendant moved to dismiss the appeal on several grounds, including the delay in filing the record and the failure of the appellant to specify and argue error in accordance with the rules of this court, and the court took the motion with the case.


On the merits, pointing out that the appeal raises only questions of fact and that the record amply supports the findings, cross-plaintiff urges upon us that the judgment should be affirmed.


We agree that this is so, and, because we do, it will serve no useful purpose to set out the facts as they are clearly and correctly related in the trial court's unreported findings of fact and conclusions of law. It is sufficient for us to declare that the judgment, based on those findings, was correct and that it should be