Eastern Sportswear Co. v. S. Augstein & Co.

• Court: Connecticut Supreme Court
• Writing for the Court: DALY
• Citation: Eastern Sportswear Co. v. S. Augstein & Co., 106 A.2d 476, 141 Conn. 420 (Conn. 1954)
• Decision Date: 07 July 1954
• Parties: EASTERN SPORTSWEAR CO. v. S. AUGSTEIN & CO., Inc., et al. Supreme Court of Errors of Connecticut

Page 476

106 A.2d 476

141 Conn. 420

EASTERN SPORTSWEAR CO. v. S. AUGSTEIN & CO., Inc., et al.

Supreme Court of Errors of Connecticut.

July 7, 1954.

John W. Joy, Hartford, with whom, on the brief, was George Cutler, Hartford, for appellant (plaintiff).

Leonard T. Calvert, Hartford, for appellee (named defendant).

Before BALDWIN, O'SULLIVAN, WYNNE, DALY and SHANNON ^*, JJ.

DALY, Associate Justice.

The plaintiff brought this action to recover a balance to be due from the defendants. The court rendered judgment for the plaintiff against the named defendant upon the complaint. The defendants, in a counterclaim, alleged that, in another transaction, they engaged the plaintiff to manufacture dresses and that 692 of them were defective and as a result the defendants suffered a loss in their sale. Judgment was rendered for the named defendant to recover $2897.18 on the counterclaim, and the plaintiff has appealed.

In its assignment of errors, the plaintiff claims that the court erred in refusing to find material facts as set forth in forty-six paragraphs of its draft finding, and in finding, without evidence, certain facts set forth in twenty-four paragraphs of the finding. Some of these claims refer to immaterial facts. Many of them relate to facts found which were supported by evidence. The others have to do with facts which the plaintiff claims were admitted and undisputed because the named defendant, hereinafter called the defendant, offered no evidence to contradict statements made by the plaintiff's witnesses. 'Absence of direct contradiction by the mouth of a witness does not make a fact undisputed within the meaning of the rule. * * * The trial court is at liberty to discredit any witness or multitude of witnesses, if it deems that it has cause to do so. It is one of the important functions of a trier to determine the relative credit to be given to oral evidence. Otherwise false testimony would be a more serious factor in the administration of justice than it now is.' Allis v. Hall, 76 Conn. 322, 340, 56 A. 637; Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 541, 129 A. 527; Chouinard v. Zoning Commission, 139 Conn. 728, 730, 97 A.2d 562. The method pursued by the plaintiff has been frequently criticized by this court as an attempt to substitute the draft finding for the major part of the finding as made. 'This method does not commend itself * * *.' K. B. Noble Co. v. Popielarczyk, 125 Conn. 699, 701, 8 A.2d 33. No correction can be made which is material to the appeal.

The finding may be summarized as follows: The plaintiff is in the business of manufacturing women's dresses. During 1948 and 1949, it agreed to make dresses for the defendant. The latter furnished the fabrics, which were cut in various styles designated by numbers. The plaintiff manufactured 3421 dresses of style No. 1227 and 1154 dresses of style No. 1238. These were received and paid for by the defendant. They were inspected upon arrival, and it was discovered that 142 of style No. 1238 and 550 of style No. 1227 were defective. The defects, known as 'needle chews,' consisted of punctures visible to the naked eye. They were caused by an improper adjustment of the needles on the plaintiff's shirring machines. The dresses were unmarketable as regular merchandise, and the faulty portions of them could not have been replaced satisfactorily. Shortly before the manufacture of the garments started, the defendant's representative instructed the plaintiff's manager as to the proper method of adjusting the needles. Repair by the use of remnants would have required a great deal of labor, and remnants often fail to match the balance of the dress in appearance. As the screens used for printing the design on the cut pieces of the two styles were destroyed at the end of the defendant's selling season, they would not have been available for printing additional cloth. The defendant informed the plaintiff of the defects as soon as they were discovered and then carefully packed and stored the defective dresses to prevent spoilage. The defendant's garments are sold under a well-known brand name and are known to retailers and the public by the defendant's patterns and the brand name. The defective dresses were unfit for merchandising through the defendant's regular outlets. The sale of faulty goods in the defendant's patterns would adversely affect its valuable business relations with its retail outlets and the public and would damage its good will.

The defendant began an attempt to sell the dresses in May, 1949. Their sale, in order to minimize damage to the defendant's good will, could be best accomplished by sales outside the country or to domestic retail outlets catering to customers who were not in the market for the defendant's regular merchandise. After unsuccessful attempts to sell the dresses abroad, the defendant solicited bids for them from four such domestic retailers. The highest offer was made by Filene's in Boston for sale of the dresses in its basement store. After the labels were removed, 139 dresses of style No. 1238, costing $8.72 each, and 539 of style No. 1227, costing $6.90 each, were sold to Filene's at $3 each. The defendant's employee who sold the dresses had had long experience in the sale of defective merchandise and the buying and selling of dresses in New England. The plaintiff attempted to purchase the dresses but offered no specific...