No. 143—2257.

#### John Roper et al. v. The Globe Pickle Company.

This was assumpsit brought by John Roper and others against the Globe Pickle Company to recover damages for the breach of an alleged contract entered into by the defendant with the plaintiffs, for the sale and delivery to the plaintiffs of a certain number of barrels of pickles at certain specified prices. The defendant pleaded non-assumpsit and set-off, the indebtedness sought to be set off being for goods sold and delivered by the defendant to the plaintiff. The trial was had before the court without a jury, and the issues found for the defendants, and a judgment rendered in their favor on their plea of set-off for $87.65 and costs. The only questions presented are mere questions of fact upon which the evidence is conflicting. The main controversy in the case is as to whether the contract set up in the declaration was ever actually entered into by the parties, and on this question two witnesses, the agents of the respective parties, testified ; and their testimony is directly in conflict. The court finds no cir*645eumstances in evidence which seem to afford any material corroboration to either of these witnesses, and the court belowi who saw the witnesses and heard them testify, having for reasons satisfactory to himself, seen fit to believe the defendants5 witness in preference to the plaintiffs5, it is impossible for this court to say that he was not warranted in so doing.

Judge below, Richard Prendergast.

Attorneys, for appellants, Messrs. McClellan & Cummins ;

for appellee, Mr. Alva A. Knight.

Opinion filed Feb. 23, 1886.

Opinion by Bailey, P. J.