Bagwill

The plaintiffs had judgment for the sale price of an automobile based upon a complaint containing two counts, one charging an open book account, and one charging the indebtedness arising from the sale and delivery of the automobile as and on account of the sale of goods, wares and merchandise sold and delivered by the plaintiffs to the defendant, upon which there was due and unpaid the purchase price thereof.

Upon this appeal the appellant contends that the evidence is insufficient to support the findings of the court, and that no action could be maintained for the purchase price of the automobile; that the action should have been only for the breach of an executory contract and damages resulting therefrom.

On or about the twelfth day of July, 1930, the defendant, after some negotiations had taken place relative to the sale and purchase of a certain “Hupp” automobile, signed the following order blank:

Whether this instrument be considered simply as an order or a conditional sales contract, it satisfactorily appears therefrom that the description of the automobile under consideration is specifically set forth, and that payment therefor was to be made in cash, coincident with the…