Jones v. Mayden

CHIPHAN, P. J.

This is an action for the recovery of the balance due on a conditional contract of sale'of an ice machine.

At the close of plaintiff’s evidence the court granted a motion for nonsuit and entered judgment for defendant. Plaintiff appeals from the judgment.

The contract is pleaded

in haec verla

and its opening paragraph reads as follows:

“It is agreed, between J. C. Jones, the vendor, hereinafter called vendor, and J. L. Hayden, the vendee, hereinafter called vendee, as follows: Said vendor has agreed to sell, and said vendee has agreed to buy the following property, to wit, one ice machine known as the Polar Wave Ice Hachine, and equipment for the same as follows” (description of sundry

[24]

parts). Then follow the payments to be made and the various conditions and throughout the contract defendant May-den is referred to as the only vendee. The attesting clause is as follows: “In witness whereof the vendor and vendee have caused their names to be subscribed hereto on the day and year first above written.

“J. C. Jones, vendor,

“Suttee Candy Co., vendee,

“Per J. L. Mayden.”

It is alleged in the complaint that on the fourteenth day of June, 1915, the said defendant, Mayden, made, executed, and delivered to the plaintiff “the foregoing instrument in writing”; that “plaintiff installed the said machine and apparatus described in said contract on the premises of said defendant, and that defendant failed, neglected, and refused to pay” the price therein agreed to be paid, except the sum of $50, which defendant paid plaintiff. It is alleged that the name “Sutter Candy Co.” signed by the defendant to the said contract “was and is a fictitious name under which defendant, J. L. Mayden, was during all the times herein mentioned, and is now doing business, and that said defendant, J. L. Mayden, is now and was. during all the times herein mentioned, the sole and only owner of the said ‘ Sutter Candy Co.’ and the only person interested in any way in the business of said 1 Sutter Candy Go.’ or the carrying on of the same, or in the said contract. ’ ’