A. H. Davenport Co. v. Addicks, 21 Del. 4

A. H. Davenport Co. v. Addicks

21 Del. 4 | Del. Super. Ct. | 1904

Lore, C. J.:

The Court have considered the application of the plaintiff in the case of Davenport vs. Addicks, for judgment notwithstanding affidavit of defense. The affidavit of demand is based upon a book account for goods, wares and merchandise sold to the defendant, and his defense is that he never purchased a certain portion of these goods nor did he authorize anyone else to purchase them. It is true that there might be some other ground *7of liability, as for instance, a person may receive goods, and, by the use of them and knowledge of the fact, make himself liable; but you could not recover in a case of that kind upon a book account for goods sold and delivered to him ; it would not come within our statute and you would not be entitled to take judgment. The implied liability would be independent of the book account. The rule in all cases, if there be a doubt, is that we will not permit judgment to be taken at the first term on affidavit of demand. A reasonable construction of the word purchase would cover defendant’s liability as purchaser either express or implied, upon a book account for goods sold and delivered, etc.

We refuse judgment.