H. D. Taylor Co. v. J. H. Jonas & Sons

Appellant brought action upon a book account for an alleged unpaid balance of $1209.47 for merchandise sold and delivered to defendants and included a second cause of action for this amount on the theory of an account stated.

Appellant states, as the facts of the case, that appellant, located at Buffalo, New York, received through J. S. Zim merman, its authorized agent, a verbal order from J. H. Jonas of Los Angeles, on February 23, 1924, for five pieces of mohair to be shipped by express, part at once and the balance in thirty days; that the first shipment arrived about May 24, 1924, and the balance arrived about the middle of June, 1924; that upon receipt of the first shipment respondent wrote appellant that he had never ordered the merchandise and was holding the merchandise subject to appellant’s disposition; that at some indefinite time later respondent and Zimmerman had a conversation in which respondent objected to paying the express charges, claimed that there were defects in the merchandise and offered to take the same at a reduction of 25 cents per yard provided appellant would pay the difference between express and freight charges, which offer was not accepted; that…