C. I. T. Corp. v. Lawson

PLUMMER, J. The plaintiff had judgment against the defendant upon two assigned claims on account of merchandise alleged to have been sold by one Andrew Gray, and delivered to the defendant. From this judgment the defendant appeals.

[5]The complaint states two causes of action. The first cause of action alleged that on the 16th day of February, 1933, the plaintiff in due and regular course of business and for value, purchased the conditional sales contract marked “Exhibit A” and annexed to the complaint, setting forth the merchandise sold and delivered by the said Andrew Gray to the defendant, and that upon said contract there is and was due at the time of the filing of the complaint the sum of $1336.08. Attorney’s fees were also asked as to said first cause of action. The second cause, after setting forth the assignment of the contract, etc., alleged the sale of merchandise by the said Andrew Gray and delivered to the defendant, and upon which contract there was due the purchase price of $1516.32. The court awarded judgment in favor of the plaintiff in the sum of $3,202.40.

By way of defense the defendant in his answer alleged an alteration of the contracts, and that the contracts sued upon were not the contracts signed by him, and that the merchandise described in the complaint differed from the merchandise described in the contracts signed by him, and therefore the defendant was not liable.

It does not appear from the transcript that the defendant ever paid, or offered to pay, any portion of the purchase price of the merchandise that was received by him, nor does it appear from the transcript that the value of the merchandise received by the defendant was not equal to that alleged in the complaint.

The record shows that the merchandise involved relates to X-ray equipment. This equipment was sold through Andrew Gray (mentioned in the transcript as “Doctor Gray”). It appears that Doctor Gray was an agent for the sale of X-ray equipment, and had entered into and negotiated an agreement with the defendant for the sale and delivery to the defendant of the X-ray equipment mentioned in the transcript. A number of contracts are mentioned in the transcript, but only two of them are involved in this action.

A careful reading of the briefs and of the portions of the transcript referred to therein, exhibits the fact that there is presented for our consideration only a conflict of evidence. The law is well settled that where there is a conflict of evidence, if there is any substantial evidence supporting the