Alpher-Kur-Greenberg Co. v. Holober

• Decision Date: 03 March 1924
• Docket Number: 3977,3978.
• Citation: Alpher-Kur-Greenberg Co. v. Holober, 296 F. 983 (D.C. Cir. 1924)
• Parties: ALPHER-KUR-GREENBERG CO. v. HOLOBER (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F. 983

ALPHER-KUR-GREENBERG CO. v. HOLOBER (two cases).

Nos. 3977, 3978.

United States Court of Appeals, District of Columbia.

March 3, 1924

Submitted January 9, 1924.

Rehearing Denied March 25, 1924.

Morris Simon, L. Koenigsberger, and Eugene Young, all of Washington D.C., for plaintiff in error.

W Bissell Thomas, of Washington, D.C., for defendant in error.

Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.

SMYTH Chief Justice.

These are writs of error by which Alpher-Kur-Greenberg Company, a corporation, seeks to have reversed judgments of the municipal court. Both cases were tried upon the same evidence, and are governed by the same principles of law.

The plaintiff in error, who is a jobber in jewelry, sold a bill of goods to one I. Holober, brother-in-law of the defendant in error, for which it received four promissory notes, signed by I. Holober, and indorsed by the defendant in error. The latter defended on the ground that all the goods charged for were not delivered, that some of those delivered were returned, that the plaintiff in error had fraudulently misrepresented the value and character of the goods, and that they had been tendered back to it, but that it refused to receive them. At the close of the testimony plaintiff in error requested the following instruction 'The jury are instructed that their verdict should be for the plaintiff for the amount sued for, less the price of goods charged for and not delivered, if any, and less, also the price of such goods, if any, as were returned by I. Holober to the plaintiff, and agreed by the plaintiff to be credited on the notes in suit.'

The instruction requested was denied, but was modified by the court by adding thereto the words, 'provided the jury believe from the evidence that no fraud was perpetrated by the plaintiff in the transaction,' and, as thus modified, was given. The refusal of the court to give the instruction as requested is assigned as error; so is the action of the court in modifying it. Plaintiff in error argues that there was no evidence tending to show fraud, and therefore that it was entitled to the instruction as requested.

I. Holober testified that he was a watch repairer, a business which he had followed practically all of his life; that he had no experience in the jewelry business prior to the purchase of the goods in question; that he had $1,000 to invest, and determined to engage in the jewelry business; that at the request of a representative of the plaintiff in error he called at its place of business, was shown some merchandise, and told, 'This is the merchandise you will need over there;' that this was late in the afternoon-- about closing time; that when he came back the next day the representative had a quantity of goods packed up and said to him, 'I have got just a nice stock for you,' at a cost of $2,900; that he had not that much money, and so asked his brother-in-law, defendant in error, if he would indorse his notes for the purchase of the goods; that after the goods were delivered to him he checked them, and found that some were missing. Soon after having opened the goods he sent for Mr. Kur, president of the corporation, and said to him, 'I am overcharged between 100 and 350 per cent.;' that the first time he found that articles that had been sold to him for gold were brass was when a customer bought a chain supposed to be solid gold, which had been sold to him for solid gold, and for which he had paid the price of solid gold (but he does not say that the chain was not as represented, or how he learned the articles were brass); and that he did not have an opportunity to examine the goods before they were sent to him by the plaintiff in error, although he had seen some of them prior to that time. The goods for which the notes were given were delivered to him about the 10th of September, 1921. When three of the notes became due they were renewed, one on November 25, 1921, one on December 27, 1921, and one on January 25, 1922. In November, 1921, he stated to plaintiff in error that he had been cheated. In October or November, 1921, the exact date is not given, he purchased from plaintiff in error $600 worth of goods, in addition to those for which the notes had been given, and about the same time returned some of the original purchase. All of the original purchase had been disposed of by him, except about $1,200 worth, figured at the price charged him by plaintiff in error. At no time did he offer to return all the goods purchased and rescind the contract.

On March 2, 1922, he filed a petition in voluntary bankruptcy, in which he listed plaintiff in error as a creditor in the sum of $1,750. the amount sued for. An expert witness produced by defendant in error said he could not determine whether a piece of goods was solid gold, gold-plated, or brass by looking at it; that jobbers take the manufacturers' word as to the character of the goods they buy.

The defendant in error testified that, when he was asked to sign the notes, he had an interview with Mr. Kur, and expressed to him the opinion that his brother-in-law was not justified in taking so large a bill...