John Sexton & Co. v. Stewart

28 Mass. App. Dec. 52

• Court: Massachusetts District Court, Appellate Division
• Decided: February 20, 1964
• Docket: No. 91144
• Status: Published

Opinion

Gillen, J.

This is an action in contract to recover against two defendants, Norris Stewart, d/b/a “Chicken on The Hill” and Morey B. Silva. The plaintiff is a purveyor of wholesale groceries and alleges to have sold certain merchandise to the defendants when they owned and operated a restaurant called “Chicken on The Hill” or “Regent Chicken on The Hill”.

Norris Stewart was defaulted and the trial proceeded with Morey E. Silva as defendant.

At the proper time the plaintiff filed a request for ruling of law, No. 2, that the trial judge could not find for the defendant. The trial judge denied the request and found for the defendant.

Out of a mass of evidence, it appears that the goods in question were sold subsequent to January 31, 1963. In January, 1963, the defendant sold all his interest in the business to the defaulted defendant Stewart.

There was further evidence from an agent of the plaintiff that as of January 24, 1963, the account of the plaintiff as to the goods in the instant case was stamped “New Customer”, and all invoices for the goods sold were stamped “Norris Stewart”.

Bernard R. Kafka for the Defendant.

On this evidence alone, the trial judge was warranted in finding for the defendant. He obviously found the defendant was not connected with the business when the goods at issue were sold; that the plaintiff gave credit to the defaulted defendant, Norris Stewart. Zulalian v. Robinson, 34 BMC App. Div. 39.

Report dismissed.