Epitomized Opinion

Schaefer was engaged in the apple business at Sochester, N. Y. On Dec. 4, 1918, Herier & Co., Cincinnati commission merchants, notified Schaefer ;hat they desired to purchase three carloads of ipples. Two of these cars were tendered to the tailroad Company on Dec. 6, 1918, but the Rail-read refused to ship them on account of an embargo >n shipments of apples to Cincinnati. Subsequently Schaefer shipped the apples to his own order to Louisville, Ky. Schaefer notified Herier that if a leposit of $2,000 were made in a Rochester bank le would issue diversion instruction so that the ipples could be delivered. The apples were to be :. o. b. Rochester. On March 9, 1921, Herier ordered another carload of apples from Schaefer,' f. o. b. Cincinnati. Herier received the apples and refused to pay for them. Schaefer filed suit. Herier admitted the purchase and by cross-petition alleged that Schaefer was indebted to the partnership for breach of the former contract. The jury returned a verdict in favor of Schaefer. The defendant prosecuted error. In sustaining the lower court, the Court of Appeals held:

1. That it could not' be said as a matter of law that the findings of the jury and the judgment was manifestly against the weight of evideneé.