H. Michaelyan, Inc. v. New Jersey Guaranty & Plate Glass Insurance

Untermyer, J. (after stating the facts as above).

This is one of those cases — always hard cases —■ where the question to be decided is which of two innocent parties shall suffer from the wrong of a third. The decision is rendered particularly difficult because it is impossible to determine the facts out of which the suit arises with any degree of certainty. The Dulanys and Devoe are the only persons to whom the facts are fully known, but of these the Dulanys did not testify and Devoe, who testified at the trial, is unworthy of belief. In this obscurity, the facts must be ascertained…