Bloch v. Martin

Action for merchandise sold and delivered of the value of $72.27. The case was commenced before a justice of the peace by filing an account with this caption:

“I. and A. Bloch, trading as the Ohio Pottery and Glass Company, 628 Superior Street, Cleveland, Ohio.

“Sold to Mrs. John Martin, formerly Mrs. H. C. Vasterling,- trading as the Edna Millinery and Notion Co.”

The justice issued a summons wherein plaintiffs were described as the Ohio Pottery & Glass Company, without giving the names of the members of the partnership. The account as filed was verified by the affidavit of E. F. Stitzel, bookkeeper for plaintiffs, to the effect that the Ohio Pottery & Glass Company was a partnership composed of I. and A. Bloch. In due course the cause proceeded to the circuit court, was there tried before a jury and the sale of the goods established by the depositions of witnesses and the testimony of defendant. She said, however, they were purchased by her in January to be delivered immediately so she could have them to use during the dull season, but were not delivered until March 20th or April 3d, when her spring goods were in and she had no room for those in suit. Her store was at a place called Illmo, and she testified that instead of opening the goods, she shipped them to her father, who did business in Charleston, Missouri, for him to sell if he could and account to plaintiffs for the purchase price; also for the purpose of having him see the traveling salesman of plaintiff who had sold *86the goods to defendant and make some settlement with him. Though defendant said she did not open the goods, she testified they were of inferior quality, and we suppose she partly inspected them. She did not ship them to her father until several days after they were received. The father testified he saw part of the goods, though they were not opened by him, and found them of inferior quality; had they -been good he would have retained them; as they were, he shipped them to the Ohio Pottery & Glass Company at Cleveland, Ohio. The testimony for plaintiffs went to prove the goods never were reshipped to them, and as shipped by them, corresponded to the order defendant gave. We find no defense to this demand. Defendant instead of making complaint about the quality of the goods or their late delivery, or returning them at once to plaintiffs, turned them over to her father to sell in another town, and gave plaintiffs no notice. Her conduct was not even an attempt to rescind the contract of sale.

The main point raised on the appeal is that the corporate existence of plaintiffs was brought into question by an affidavit denying plaintiffs were a corporation and they introduced no proof to show they were. Plaintiffs did not sue as a corporation, but as a partnership; -and while it is true defendant filed a verified affidavit saying they were not a corporation, this affidavit was irrelevant. It appears to have been made because the summons issued-by the justice failed to set out the individual names of the plaintiffs and described them instead by their firm name; but that imperfection was cured by the appeal. [R. S. 1899, sec. 4060.] The account filed before the justice showed they were a partnership and suing as such, instead of as a corporation.

The appeal is as devoid of merit as one could be, and the judgment will be affirmed.