Fiske v. Lowry

PRESTON, J.,

pro

tem.

This is an appeal by defendant from a judgment against him in the sum of $1,545.60 for plumbing supplies alleged to have been sold and delivered to defendant by the plaintiff.

The complaint is in two counts. Count I alleges “that within two years immediately last past defendant became indebted to plaintiff in the sum of $1,545.60, on account of goods, wares and merchandise sold and delivered by plaintiff to defendant at the latter’s instance and request; that neither the whole or any part of said sum has been paid.” Count II alleges “that on the 20th day of February, 1924, an account was stated between plaintiff and defendant in the sum of $1,545.60; that defendant agreed to pay plaintiff said sum but neither the whole or any part thereof has been paid.”

Defendant, by his amended answer, denies specifically both counts of the complaint and in addition alleges, as a separate defense, that the merchandise, consisting of certain plumbing supplies, were not purchased by him, but, on the contrary, were placed in his warehouse on the understanding and agreement that defendant should sell same as agent for plaintiff, and receive a commission on all sales made, and that in pursuance of this agreement defendant did sell certain of said plumbing supplies to his regular customers, but that the goods were defective and many were returned and rebates made to customers on others. Defendant admits that there is certain money due plaintiff from him on these sales, but contends that he could not pay any money to plaintiff at the time of filing his answer, owing to the fact that other dissatisfied customers might return their goods and demand a return of their money, etc.

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Defendant has also filed a counterclaim in which he alleges that he was the agent of plaintiff to sell certain plumbing fixtures and that he did make certain sales, and earned commissions in the sum of $359.37, and that he expended $35 as freight on the goods, and other incidental expenses, amounting in the aggregate to $411.87, and prays judgment in his favor for $411.87.

Upon the issues thus joined the case was tried by the court without a jury and the court found that all of the allegations of count I of plaintiff’s complaint were true, and further found as follows: Finding II: “ That on February 20, 1924, defendant became indebted to plaintiff in the sum of $1,545.60 on account of goods, wares and merchandise consisting of plumbing supplies sold and delivered by plaintiff to defendant at the latter’s instance and request ; that said sum of $1,545.60 became due and payable from defendant to plaintiff on February. 20, 1924; that neither the whole nor any part of said sum, nor any interest thereon, has ever been paid”; finding III: “That it is not true that plaintiff ever employed or appointed defendant as plaintiff’s agent to sell said plumbing supplies or that defendant ever acted, or was ever authorized to act, as such agent; that plaintiff never promised or agreed to pay defendant anything for any services by defendant in connection with the sale of said plumbing supplies, nor to reimburse defendant for any expenditures made by defendant in connection with said plumbing supplies; that no commission or other compensation is due from plaintiff to defendant for selling said plumbing supplies; that nothing is due from plaintiff to defendant on account of any expenditures made by defendant in connection with said plumbing supplies. ’ ’