Maguire v. Long-Hurst

FINCH, P. J.

— The complaint alleges that the plaintiff purchased from the defendant a Flint sport roadster for $2,245 and delivered to defendant in payment therefor a Flint touring car and the plaintiff’s promissory note for $945; that “defendant agreed to give plaintiff a credit upon the purchase price of said Flint sport roadster of $1,300 on account of said Flint touring car, and defendant further agreed that in the event he, defendant, was able to dispose of said Flint touring car for $1,300 he, the defendant, would pay to plaintiff the sum of $500 out of the proceeds of said sale, less $100 to be retained by the defendant for possible service charges which might accrue upon the Flint sport roadster above mentioned; and the defendant further agreed that in no event would he sell the said Flint touring car for less than $1,100, in which event he, defendant, would pay to plaintiff the sum of $300, less $100 for possible service charges as above set forth”; that the defendant sold the touring car for $1,300 and that he performed no services on the roadster; and that the plaintiff had fully paid the amount due upon his promissory note. The prayer is for judgment in the sum of $500.

The answer admits the alleged sale and that defendant agreed to give plaintiff a credit of $1,300 on account of the touring car, but “denies that defendant further agreed that in the event he, defendant, was able to dispose of said Flint touring car for the sum of $1,300 he, said defendant, would pay to plaintiff the sum of $500 out of the proceeds of said sale, less $100 to be retained by defendant for possible service charges which might accrue upon the Flint sport roadster in plaintiff’s complaint mentioned; defendant denies that he, defendant, further agreed that in no event would he sell the said Flint touring car for less than $1,100, in which event he, defendant, would pay to plaintiff the sum

[550]

of $300, less $100 for possible service charges as set forth in plaintiff’s complaint, and in this connection defendant avers that he did agree and would give a credit to plaintiff upon the purchase price of said Flint sport roadster of $1,300 on account of said Flint touring car, and that defendant agreed with plaintiff that upon the receipt by him, defendant, of said Flint touring car, he would put said Flint touring ear in a marketable condition and repair the same and if upon a resale of said Flint touring car there should be or remain any profit to the defendant, that he, defendant, would pay said amount to plaintiff, less the sum of $100 to be retained by the defendant for service charges; that there was no profit to defendant by reason of said transaction and that there was nothing, nor is there now anything due plaintiff from defendant by reason of such transaction.”