128 Mass. 171 | Mass. | 1880
The only question for trial in the court below was whether the plaintiff sold, and the defendants bought, the flour replevied, or whether the plaintiff as consignor sent the flour to the defendants, who received it as consignees. From the plaintiff’s letter it appears that the flour was sent to the defendants for them to exercise their election whether to purchase or to receive it on consignment. That was a fact to be determined by the presiding judge upon the evidence. The evidence was conflicting. The defendant Brown was permitted to testify that he elected to receive it as purchaser, and this evidence was objected to; and the competency of that evidence is the only question raised on this bill of exceptions. Its competency is too plain for discussion. There was no question of mental processes of the defendant, but simply a question of fact whether he did or did not at the time exercise his election, and accept the flour as purchaser. The finding of the presiding judge is conclusive of the fact; and that finding, having been made upon competent testimony, must stand. Exceptions overruled.
