Bloomingdale v. Keller

The complaint alleges that the plaintiffs sold and delivered a piano to the defendant at the agreed price of $325 and that the defendant paid $45 of this sum and demands judgment of $280. The answer admits the payment of $45 to the plaintiffs and denies all the other allegations of the complaint. •

The plaintiffs proved that they sold a piano to one “ Herman Keller ” and that “ Herman Keller ” had given a chattel mortgage upon the piano. They also proved that the piano was delivered to “ Herman Keller.” The court below dismissed the complaint upon the ground that the “ Herman Keller ” to whom the piano was sold was not identified as Herman Keller the defendant. We think that this ruling was unduly strict. The identity of name of the defendant and the person to whom the piano was sold and who executed a mortgage upon it, together with identity of residence which was shown, and the fact that the defendant in his answer admitted that he had paid forty-five dollars on account to the plaintiffs presumptively established the identity of the defendant;

The plaintiffs proved a friona facie case and it was error to dismiss the complaint.

Guy and Bijub., JJ., concur.

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