
    LOTZ BROTHERS DAIRY, INCORPORATED, PLAINTIFF-RESPONDENT, v. WERNER & COMPANY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted October 25, 1934
    Decided March 5, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Fmrilcel & Fmrilcel.
    
    For the respondent, no appearance.
   Pee Cueiam.

This is defendant’s appeal from a judgment of the Small Claims Division of the Clifton District Court. The suit was to recover the purchase price, $42, of certain valves ordered of defendant by plaintiff for use in its milk bottling plant. The contention was, and it is supported by evidence, that the valves did not match the sample furnished and did not fit properly; so that they could not be used. The defendant counter-claimed for $27 for work done on valves alleged to have been ordered to replace some of those furnished on the original order.

The first point is that a motion to strike out the state of demand should have been granted. The motion was on the ground that, since plaintiff was in effect setting up a rescission, it was incumbent upon it to plead a return of the goods or a tender thereof. The trial judge held that pleadings in small claims causes are informal and denied the motion, allowing an exception. We think that this was in the discretion of the court, as an amendment would have been, and that there was no error prejudicial to defendant since the meritorious question was tried out.

The exception to the denial of the motion to strike is the only one contained in the record, and there is no other point properly before us except possibly the contention that there was no evidence at all to support the judgment. After the denial of the motion the parties proceeded to introduce evidence. The trial court said at one point, “there is only a dispute as to the fitness,” and this seems to have been acquiesced in by the parties and their attorneys. There was evidence that the valves did not match the sample and were unsuitable for use in the dairy of the plaintiff. Upon this evidence the court was justified in finding for the plaintiff.

The judgment is affirmed, with costs.  