Friedman v. French

The overruling of the certiorari was not error.

DECIDED SEPTEMBER 19, 1944. Paul French sued Max J. Friedman, trading as The Oxford Company, and asked for a judgment of $600. The petitioner alleged that he had a written agreement signed by Friedman in which Friedman contracted to pay French thirty cents per dozen for all goods which French could get Nunnally McCrea Company to make for Friedman. He further alleged that he procured a contract from that company to make two thousand dozen garments for Friedman, but that Friedman subsequently refused, without cause, to comply with the contract. In his answer, Friedman admitted signing the agreement for one thousand dozen garments, but alleged that the samples of the goods submitted to him by Nunnally McCrea were unsatisfactory and inferior to the goods required in his business, and that Nunnally McCrea so admitted and voluntarily canceled their contract with him, and therefore he was not obligated in any amount to French. On the trial the jury returned a verdict in favor of the plaintiff for $300; and Friedman's motion for a new trial was overruled. He then obtained a writ of certiorari and on the hearing thereof the certiorari was overruled, and that judgment is assigned as error. The petition for certiorari contained the general grounds and one special ground. The special ground complained of the admission of testimony by French about a purported telephone talk between Friedman and some one at Nunnally McCrea's, French being then in Friedman's office, when, according to French, Friedman was engaged in the telephone conversation. Friedman denied having the conversation, and moved that French's testimony in that connection be excluded. The evidence was admitted. In his answer to the petition for certiorari, the trial judge added something to the evidence set forth in the petition about the alleged telephone conversation, and that addition was traversed by the plaintiff in certiorari, and counsel for the defendant in certiorari agreed that the traverse was correct and that the case should proceed "on the brief of evidence as filed by the plaintiff in certiorari." That evidence, while in sharp conflict on certain questions, amply authorized the verdict in the trial court; and the special assignment of error shows no cause for a reversal of the judgment. The overruling of the certiorari was not error.

This court, not being satisfied that the writ of error was prosecuted for the purpose of delay only, denies the prayer of the defendant in error for the assessment of damages.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.