Fiske

This is an appeal by defendant from a judgment against him in the sum of $1,545.60 for plumbing supplies alleged to have been sold and delivered to defendant by the plaintiff.

The complaint is in two counts. Count I alleges “that within two years immediately last past defendant became indebted to plaintiff in the sum of $1,545.60, on account of goods, wares and merchandise sold and delivered by plaintiff to defendant at the latter’s instance and request; that neither the whole or any part of said sum has been paid.” Count II alleges “that on the 20th day of February, 1924, an account was stated between plaintiff and defendant in the sum of $1,545.60; that defendant agreed to pay plaintiff said sum but neither the whole or any part thereof has been paid.”

Defendant, by his amended answer, denies specifically both counts of the complaint and in addition alleges, as a separate defense, that the merchandise, consisting of certain plumbing supplies, were not purchased by him, but, on the contrary, were placed in his warehouse on the understanding and agreement that defendant should sell same as agent for plaintiff, and receive a commission on all sales made, and that in pursuance of…