Collier v. Dorman ( 1909 )

PER CURIAM.

Action brought to recover $4.50 claimed to be due as installments upon two contracts for the purchase by defendant ■of certain books. Defendant counterclaimed $22 paid by him for books which he alleged were not in accordance with representations made at the time of their sale. The court, without a jury, gave judgment for -$22 in favor of the defendant.

The contract of October, 1908, was for Hugo’s Foreign Romances, 39 volumes, $43. The contract of November, 1908, was for R. L. Stevenson, 8 volumes, and A. Lincoln, 8 volumes, $30. Defendant did not examine the books until three weeks after their delivery, and then complained of the “Foreign Romances” and "Stevenson,” but was satisfied with the “Lincoln.” Plaintiffs said “all would be fixed up.” These books were not returned, and plaintiff still has them.

The evidence tends to show that, before purchasing, the books or duplicates were examined by defendant. The October contract, in evidence, shows a payment of $1.50, and a payment of $8 on the November contract. There is no other evidence of payments. It is therefore difficult to understand the calculation upon which $33 was found due to defendant. It was conceded that the $4.50 sued for had not been paid. The record furnishes no basis for the judgment rendered.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.