
    [Ii. A. No. 10529.
    In Bank.
    September 11, 1930.]
    H. SCHWANNECKE, Appellant, v. FRED M. PHELPS, Respondent.
    
      Horace S. Wilson, Constan Jensen, and L. A. Gibbons for Appellant.
    Louis Babior and Rosenthal & Rosenthal for Respondent.
   PRESTON, J.

Action by plaintiff as assignee of Barker Bros., Incorporated, for possession of certain enumerated household and kitchen furnishings or, in the alternative, their value. Defendant had judgment and plaintiff appealed.

The appeal is without merit. The answer sets up that defendant made two purchases, the first on an open account in July, 1924, which account was paid, and the second in January, 1925, at which time a lease and conditional sale contract was made; that although the goods first purchased are found in said lease contract, these items do not properly belong there as they were previously paid for; that the lease contract was signed in blank and the assignor of plaintiff unlawfully inserted said items, bought ’ and paid for, therein. The court found in accord with the allegations of the answer and further found that, as to the goods properly covered by said lease contract, a tender thereof upon notice had been made to the seller and, upon his failure to receive them, they had been stored and later sold for storage charges.

The entire appeal is disposed of by determination the question as to whether or not the goods first purchased properly belong in the lease contract. Admittedly the evidence is in sharp conflict upon this question. Defendant testified that the goods were bought and paid for open account and were never to come under the lease contract; this was contradicted by the testimony on behalf plaintiff. Accordingly, there is no judicial question involved, the judgment must be affirmed and it is so ordered.

Waste, C. J., Richards, J., Seawell, J., Shenk, J., Curtis, J., and Langdon, J., concurred.  