Martin v. Horowitz

Declaring upon an account stated for newspapers sold to defendant, the plaintiff proved certain dealings with one Schwartz, who, it is claimed, had transferred his business to the defendant; but there was an absolute failure of proof that any bill or bills for the amount in suit had ever been rendered to the defendant, and the only suggestion of the rendering of a statement of even the gross amount claimed to be due is contained in the testimony of the plaintiff’s witness that the defendant promptly repudiated the asserted debt. There is nothing to indicate that the parties consented to the substitution of an issue arising out of a claim for goods sold and delivered; but, assuming the substitution, there was no prima facie proof of the price or value of the goods. Judgment reversed,- and a new trial ordered, with costs to the appellant to abide the event.