West End Bottling Co. v. Virag

Supreme Court of Connecticut

West End Bottling Co. v. Virag

141 A. 918, 107 Conn. 594, 1928 Conn. LEXIS 56

DecidedMay 4, 1928

StatusPublished

This text of 141 A. 918 (West End Bottling Co. v. Virag) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

West End Bottling Co. v. Virag, 141 A. 918, 107 Conn. 594, 1928 Conn. LEXIS 56 (Colo. 1928).

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Opinion

Per Curiam.

From about June, 1913, down to June, 1922, Julius Fleischer was engaged in business in Bridgeport. In June, 1922, a corporation was organized and adopted the name, The West End Bottling Company, which took over the business of Fleischer, which had been conducted under the name, West End Bottling Company, Julius Fleischer, Proprietor. From the organization of the corporation until the trial of this action Fleischer was a stockholder, director, president and treasurer, as well as general manager of the business, of the corporation.

The defendant received the goods set forth in plaintiff’s bill of particulars between July 24th, 1924, and November 22d, 1926, and the agreed price of the goods so delivered was $578.58, which with interest thereon of $20.17 has never been paid.

The defendant pleaded a general denial; he admitted at the beginning of the trial that the merchandise referred to in the bill of particulars had been delivered to him, but claimed that the delivery had been made by Fleischer and not by the corporation. The trial court found that the delivery had been made by the corporation. The defendant pleaded (1) payment, and (2) that the items set forth in the bill of particulars were purchased from Julius Fleischer and applied as part payment on a debt of Fleischer with the defendant arising out of Fleischer’s indorsement of a note owned by defendant and protested for nonpayment. On the trial the defendant testified that Fleischer agreed with him that he could apply the bill of goods *596 delivered to him by Fleischer against the amount due under the note. This Fleischer denied, and further testified that he was without authority from the corporation to make such application.

The court has made no finding upon these points. The' defendant has made no request to correct the finding in these particulars, so that there are no facts found which support the defenses, nor would any of the requested corrections of the finding support these defenses. The case was apparently tried upon some theory of estoppel. In the condition of the record, we cannot consider whether the facts found, if corrected, would enable the defendant to prevail. The trial court has disposed of the case upon the issues made upon the pleadings and upon the issues so raised we find no error.

There is no error.

Maltbie, J., concurs in the result, but not in the opinion.

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Per Curiam.

From about June, 1913, down to June, 1922, Julius Fleischer was engaged in business in Bridgeport. In June, 1922, a corporation was organized and adopted the name, The West End Bottling Company, which took over the business of Fleischer, which had been conducted under the name, West End Bottling Company, Julius Fleischer, Proprietor. From the organization of the corporation until the trial of this action Fleischer was a stockholder, director, president and treasurer, as well as general manager of the business, of the corporation.

The defendant received the goods set forth in plaintiff’s bill of particulars between July 24th, 1924, and November 22d, 1926, and the agreed price of the goods so delivered was $578.58, which with interest thereon of $20.17 has never been paid.

The defendant pleaded a general denial; he admitted at the beginning of the trial that the merchandise referred to in the bill of particulars had been delivered to him, but claimed that the delivery had been made by Fleischer and not by the corporation. The trial court found that the delivery had been made by the corporation. The defendant pleaded (1) payment, and (2) that the items set forth in the bill of particulars were purchased from Julius Fleischer and applied as part payment on a debt of Fleischer with the defendant arising out of Fleischer’s indorsement of a note owned by defendant and protested for nonpayment. On the trial the defendant testified that Fleischer agreed with him that he could apply the bill of goods *596 delivered to him by Fleischer against the amount due under the note. This Fleischer denied, and further testified that he was without authority from the corporation to make such application.

The court has made no finding upon these points. The' defendant has made no request to correct the finding in these particulars, so that there are no facts found which support the defenses, nor would any of the requested corrections of the finding support these defenses. The case was apparently tried upon some theory of estoppel. In the condition of the record, we cannot consider whether the facts found, if corrected, would enable the defendant to prevail. The trial court has disposed of the case upon the issues made upon the pleadings and upon the issues so raised we find no error.

There is no error.

Maltbie, J., concurs in the result, but not in the opinion.

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Bluebook (online)

141 A. 918, 107 Conn. 594, 1928 Conn. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-end-bottling-co-v-virag-conn-1928.