Marshall v. Sheffield

Jenkins, P. J.

1. Under the original contract between the parties the defendant was privileged to return, freight prepaid, all unsold goods when reconditioned, and to receive credit therefor at the current wholesale price. Defendant pleaded satisfaction of the balance on the account sued upon, by virtue of a return of goods sufficient at the original .invoice price, as expressly authorized by a distinct subsequent contract in writing. While the plea did not allege that under such subsequent agreement, the returned goods could be shipped “collect,” it did allege their receipt and retention by the plaintiff. Held: The court did not err in overruling the demurrer to the plea.

2. Under the certificate of the judge that the absence of the alleged subsequent written agreement had been accounted for, the court did not err in admitting proof of the same by parol testimony.

3. Since, however, the plaintiff denied ever having made such a subsequent agreement, and denied having received and retained the goods returned, the court erred in directing a verdict for the defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.