Davenport v. Kimble

• Decision Date: 12 January 1943
• Citation: 29 A.2d 850,21 N.J.Misc. 29
• Parties: DAVENPORT et al. v. KIMBLE.
• Court: New Jersey Supreme Court

29 A.2d 850

21 N.J.Misc. 29

DAVENPORT et al.

v. KIMBLE.

Second District Court of City of Paterson, New Jersey.

Jan. 12, 1943.

Action by William E. Davenport and another, trading as Davenport & Moody, against James Kimble for recovery of an amount due representing a balance for goods and merchandise sold and delivered.

Judgment for plaintiff.

Milton Schamach, of Paterson, for plaintiffs.

Addison P. Rosenkrans, of Paterson, for defendant.

SILBERMAN, Judge.

This was an action instituted by the plaintiffs for the recovery of an amount due representing a balance for goods and merchandise sold and delivered. The original action is based on an account stated and at the trial a second count was added to cover a book account. The defendant contends that the claim is barred by the Statute of Limitations. He further denies that he owed the amount claimed by the plaintiffs and stated that his recollection of the indebtedness was $50. The plaintiffs' allegation that the balance of $281.30 is due was climaxed by a transaction wherein the defendant's son sold to the plaintiffs certain tires and was entitled to a commission, which the plaintiffs claim Kimble, Jr., authorized to be credited to the account of his father. The plaintiffs further testify that this was discussed with the defendant herein and met with his approval. In other words, the allegation of the plaintiffs is that a credit of $3.66 was given on the account of the defendant, James Kimble, on April 22, 1938, being within six years before suit was started and that he at that time and for some time subsequent thereto promised to continue to pay off the indebtedness. The defendant claims that he never knew of any such transaction and was never informed of any credit given to him by reason of a commission due to his son. The defendant's son testified that the credit was given by arrangement between the plaintiffs and himself but that he never discussed the same with his father nor did he have his father's permission to have a credit entered for him on this account. Further proof was presented by the plaintiffs that the account was discussed often between the respective parties hereto and on each occasion there was an admission by the defendant of the indebtedness with the continued statements of a promise to pay. The defendant, on the other hand, stated that he never made any promises to pay and that there was no approval of the credit allegedly entered on his account, and that if there was any indebtedness, it did not exceed the sum of $50.

I am inclined to place little credence in the testimony of the defendant and his son in view of the fact that if a commission was due to Kimble, Jr., as he allegedly testified, he certainly would not have permitted the commission to go unpaid and there is no doubt in the Court's mind that the credit was entered with the consent of the son and the father, and was by a...