United Distributors, Inc. v. Brocato , 138 So. 2d 682 ( 1962 )

McBRIDE, Judge.

Plaintiff appeals from the dismissal of its suit for $138.97 for a television set which it is claimed defendant received from it but did not pay for.

The brief facts in the case are that on December 22, 1959, plaintiff sold and delivered unto defendant a television set for the above price which set proved to be unsatisfactory and was replaced by plaintiff with another set of the same type and model. The only question in the case is whether defendant returned the first set. He paid for one set but plaintiff claims he also owes for the other as it never received that other back from defendant.

Defendant’s contention that the first set was returned is in the nature of a confession and avoidance, and, therefore, the burden of proof clearly rests upon him of proving the return.

When defendant was asked if he could say that the set had been “picked up,” he replied:

“No, we have a place there for certain merchandise to be picked up and set it aside, and I’didn’t see it-there and I asked if the man came and picked up the set, and he said ‘Yes, it was picked up.’ That was my son-in-law.”

The son-in-law was never produced as a-witness. On the other hand, two representatives of plaintiff (the credit manager and the driver) testify that the set was not returned.

The judgment is manifestly in error, and it is now ordered, adjudged and decreed that the judgment appealed from be reversed, and that plaintiff now have judgment in its favor against defendant for $138.97, with legal interest thereon from January 22, 1960, and for costs of both courts.

Reversed.