
    Dragani & Pappas Co. vs. United Importers, Inc.
    No. 83466
    January 16, 1931.
   BLODGETT, P. J.

Heard without the intervention of a jury.

Action on book account to recover for the sale of merchandise delivered to defendant. Plaintiff sold certain chestnuts to defendant and defendant claims that some 816 pounds were bad.

The parties had many transactions with each other and the present action is brought to recover a balance due upon the -account, amounting to $401.70. The goods were sold during November and December, 1929.

December 31, 1929, defendant paid $250 on account of the balance claimed to be then due. Defendant on November 26, December 16 and December 30, 1929, sent letters to plaintiff relative to this dispute and the matter was adjusted at the meeting of the parties on December 31, 1929. The present dispute arises now as to what adjustment was made at that time.

For plaintiff: Benjamin -Cianciarulo.

For defendant: Raphael Vicario.

Witness for plaintiff says plaintiff agreed to a certain amount to he allowed for the bad chestnuts, leaving a balance due as above.

Defendant claims in a letter of January 2, 1930, that the balance due was $97.12 and enclosed a check for that sum which plaintiff returned and refused to -accept. Defendant further claims to have bought the chestnuts at eight cents a pound while plaintiff claims the price agreed on was ten cents a pound.

Plaintiff claims the amount agreed upon for the inferior chestnuts was two cents a pound upon a shipment of December 9, 1929, amounting to $20.20.

The Court feels in a controversy of this nature where the parties are dealing together and a large number of transactions are taking place, that a proper set of books kept by plaintiff is good evidence of the status of the account.

When defendant received a shipment of the chestnuts in question and a portion of them was found to be unsalable, it was his duty not only to inform the plaintiff of the fact but also to do one -of two things; either return the shipment or hold the same for a certain period, giving the shipper notice and opportunity of examination. Defendant failed to return the goods. The correspondence shows (Defts. Exs. 3 and 1) that he did notify the plaintiff of the poor quality of the chestnuts and that he held eight cases for examination by plaintiff.

Plaintiff and defendant on December 31, 1929, made an agreement of some nature and defendant retained the shipment. No memorandum is in existence as to just what the agreement was, save a notation in pencil on Defendant’s Exhibit 6 that $20.20 was allowed on shipment of December 9, 1929.

Decision for plaintiff for $401.70' and costs.  