151 F. 216 | 7th Cir. | 1906
delivered the opinion of the court.
In an action of assumpsit, on a declaration containing only the common counts, and on a plea of the general issue with notice of set-off and recoupment, the defendant in error, plaintiff below, obtained the judgment which is challenged by this writ of error.
1. The declaration as originally filed did not contain the necessary allegations respecting diversity of citizenship. The verdict was returned and judgment was.entered on.Eehruary 6, 1906. On. February 32th, at the same term and when plaintiff in error was present, the
2. Plaintiff in error, a jobber of shoes, in the fall of 1902 placed orders at certain prices with Frank E- White Company, a partnership engaged in manufacturing shoes. The contracts were assigned by Frank E. White Company to defendant in error. The shoes were manufactured and delivered by defendant in error, and this action was for the purchase price. Plaintiff in error, calling attention to testimony to the effect that it had no notice of and never consented to the assignment, insists that defendant in error could not maintain this action. But there was other evidence which the jury had the right to believe and act upon. A clerk in defendant in error’s office testified .that she mailed a notice properly stamped and addressed to plaintiff in error. That notice stated that on and after January 1, 1903, the firm of Frank E. White Company would be succeeded by the WhiteDunham Shoe Company, a corporation, that all accounts and contracts belonging to the firm were assigned to the corporation, and that the accounts would be collected and orders filled by the corporation. The record contains letters from plaintiff in error to defendant in error, commencing as early as January 8, 1903, relating both to the filling of contracts given by plaintiff in error to the White partnership and to the payment of accounts due the firm.. From this evidence the jury were warranted in finding that there was a novation.
3. Plaintiff in error proved that it had made payments after January 1, 1903, in excess of the accounts for shoes delivered after that date. Defendant in error proved that it had applied part of the payments to the liquidation of the White partnership accounts which had been assigned to it, leaving the unpaid balance which was sued for. The contention here is substantially the same as the last. There being a novation, and, plaintiff in error having omitted to direct the application, defendant in error was justified in applying the payments upon the old accounts.
4. Plaintiff in error offered in evidence a page from its ledger to prove the balance due on the old accounts, claiming that the amount was less than defendant in error had appropriated. But the witness who identified the ledger showed that it was not a book of original entries and failed to prove that the entries therein were just and true. The 'offer was- rightly rejected.
5. The .value of the shoes was not proved by defendant in error. As the contracts were fully executed except payment by plaintiff in error, the contracts, invoices, bills of lading, etc., which showed the contract .price, were properly received in evidence under the common counts, and made out a prima facie case that the contract price was the ■value. . ■■ . ... ;
Other assignments of error either are not supported by the record or are waived by failure to present them in argument.
The judgment is affirmed.