American Cement Corporation v. Healy Tibbitts Construction Company

PER CURIAM: Appellant chartered its barge to appel-lee by an oral charter, evidenced in part by appellee’s written purchase order. The deal was negotiated between appellant’s Mr. Dunn and appellee’s Mr. Smith. The purpose of the charter was to haul rock, sold by appellant to appellee, from Catalina to appellee’s job site at Imperial Beach. En route, the barge was damaged by peril of the sea, without fault on the part of either party. Dunn testified, in substance, that Smith agreed that appellee would be responsible for such damage. Smith’s testimony is to the contrary. The court found that appellee did not make the claimed agreement. No document contains the claimed agreement. Appellant urges that certain documents require that we hold that the finding is erroneous. Some can be construed as indicating that it is probable that the agreement was what appellant says it was. We do not think, however, that, either singly or construed together, they require such a finding. We did not see or hear Dunn or Smith. The trial judge did. We conclude that the finding is not clearly erroneous. Oliver J. Olson & Co. v. Luckenbach Steamship Company, 9 Cir. 1960, 279 F.2d 662, 663, 668, 671. Affirmed.