Jonas

The complaint in this action is in two counts. In the first the plaintiff sought to recover the balance due upon an open book account for goods, wares and merchandise sold by plaintiff to defendant in an amount of $1,427.78; the second count was for damages sustained by plaintiff by reason of the negligent care given by the defendant to a consignment of wire bed-springs, shipped by the plaintiff to defendant and kept by the latter at his place of business. The amount of damages claimed under the second count was the sum of $2,490.54. The court gave judgment in plaintiff’s favor for the sum of $1,373.57 under the first count, and the full amount sued for under the second count. The defendant has appealed.

The objection made by defendant to the judgment under the first count is that the cause of action stated therein is based upon an open book account for goods, wares and merchandise sold by the plaintiff to the defendant, but that at the trial the plaintiff failed to produce or offer in evidence any books of account showing said indebtedness. There was no dispute at the trial but that the appellant had purchased said goods, wares and merchandise at the price stated in the…