Budd v. Joseph Zukin Blouses, Inc.

STEPHENS, J.,

pro

tem.

A judgment by the court sitting without a jury went against defendants, who, after denial of their motion for a new trial, appealed.

Plaintiff represented an eastern cloth house and took an order from defendants for certain goods. The goods were delivered and a comparatively small amount thereof used before defendants, claiming them to be practically useless and not according to sample, returned the articles by express and refused payment. This action resulted. The trial court found for plaintiff on conflicting evidence and this court will therefore not further consider the evidence on this point, but will examine into the several points made in the inverse order of their statement in appellants’ brief.

Appellants’ Fourth Point: “The finding ‘that the goods, wares and merchandise sold and delivered by plaintiff’s assignor were as represented’ is not supported by the evidence.” We have passed upon this point in the statement above made.

Appellants’ Third Point: “Finding No. VI is not supported by the evidence.” Finding No. VI reads as follows: “That it is true that the S. & B. Knitting Company, Inc., duly made and executed a good and sufficient assignment, prior to the filing of said action, to Harold M. Budd, plaintiff herein, of said claim due from the defendants.” The assignment is for the sum alleged in the first alleged cause of action of the " complaint as due plaintiff from defendants. It is signed “S. B. Knitting Mills, Inc., by Michael Sehuer, Prest., Morris Blum, Secretary.” In the body of the instrument the name “S. and B. Knittin Company, a corporation of the State of New Tork,” is used. There was ample testimony upon which the trial court could properly have based the conclusion that the entity referred to in this document was plaintiff’s assignor, the “S. & B. Knitting Mills, Inc.” In reading the whole find

[449]

ings it is apparent that the word “Mills” was inadvertently displaced by the word “Company.”

Appellants object to the receipt of the assignment in evidence because it has never been proved that plaintiff’s assignor was not shown to be a corporation. It was, however, shown that it did business under the title “S. & B. Knitting Mills, Inc.,” and the assignment is signed in the same way by Michael Schuer, “Prest.” The plaintiff knew Schuer and his signature, and well knew him to be holding himself out as president of the company Schuer was selling goods for. This identifies the assignment, and it makes no difference whether the concern is a corporation or not. The assignment was withdrawn and sent east and returned with acknowledged statements attached. Of course, this added nothing to the document, and we have here considered it independently of such statements.