Crescent Bed Co. v. Jonas

CURTIS, J.

The complaint in this action is in two counts. In the first the plaintiff sought to recover the balance due upon an open book account for goods, wares and merchandise sold by plaintiff to defendant in an amount of $1,427.78; the second count was for damages sustained by

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plaintiff by reason of the negligent care given by the defendant to a consignment of wire bed-springs, shipped by the plaintiff to defendant and kept by the latter at his place of business. The amount of damages claimed under the second count was the sum of $2,490.54. The court gave judgment in plaintiff’s favor for the sum of $1,373.57 under the first count, and the full amount sued for under the second count. The defendant has appealed.

The objection made by defendant to the judgment under the first count is that the cause of action stated therein is based upon an open book account for goods, wares and merchandise sold by the plaintiff to the defendant, but that at the trial the plaintiff failed to produce or offer in evidence any books of account showing said indebtedness. There was no dispute at the trial but that the appellant had purchased said goods, wares and merchandise at the price stated in the complaint. The only controversy between the parties as to the amount claimed to be due respondent under the first cause of action arose over certain offsets, which the appellant claimed he was entitled to and which he was not credited with in the account. Eight of these items, which appellant claimed as offsets to the respondent’s account, amounting to $1,373.57, the court disallowed, and gave judgment for respondent under the first cause of action for said sum of $1,373.57, the precise amount of these eight items claimed by appellant as offsets. No question was raised during the trial that plaintiff had failed to produce its books of account, and there was ample evidence before the trial court to the effect that the account sued on was an open book account. This evidence was received without objection by the defendant, and was sufficient to prove the open book account upon which the cause of action set forth in the first count was based.

As to the judgment rendered upon the second cause of action, defendant claims that there was no evidence to justify the findings upon which the judgment rests. It was claimed by plaintiff that defendant had stored a consignment of wire bed-springs on a platform in defendant’s yard and allowed them to remain there for a long period of time without any covering or protection against the weather, with the result that the springs became covered with rust, and were accordingly greatly damaged. Defendant admitted that