New England Doll & Novelty Co. v. Del Dio
| Decision Date | 06 February 1963 |
| Docket Number | No. 10424,10424 |
| Citation | 187 A.2d 781,95 R.I. 450 |
| Parties | NEW ENGLAND DOLL & NOVELTY CO., Inc. v. Vito J. DEL DIO et al. Ex. |
| Court | Rhode Island Supreme Court |
Goodman, Semonoff & Gorin, Jordan Tanenbaum, Providence, for plaintiff.
Anthony A. Giannini, Providence, for defendants.
This is an action of assumpsit which was tried before a justice of the superior court without a jury and resulted in a decision for the plaintiff. The case is here on the defendants' exception to such decision.
The plaintiff sued defendants for a balance of $3,528.55 due from them on a running account for merchandise sold and delivered. It appears from the evidence that the account was opened on plaintiff's books in the names of 'Alantic Mills Flower & Garden Shop Louis Iannotti, Veto Del Deo [Vito J. Del Dio]' sometime in February 1957. All sales were so invoiced and until November 1958 payments were made by checks with Atlantic Mills Flower & Garden Shop printed thereon and signed by one or the other of the defendants. On or about November 15 defendants presented to plaintiff five checks with the name Imperial Gifts & Garden Company printed thereon and signed by defendant Del Dio. At that time plaintiff's president, Louis Spero, instructed its bookkeeper that when any checks with the signature of either Del Dio or Iannotti were received they should be credited to the account of Atlantic Mills Flower & Garden Shop. Thereafter in October, November and December 1959 a number of Imperial Gifts & Garden Company checks signed by Louis Iannotti were received and so credited.
The plaintiff's ledger cards showing such credits were introduced in evidence. All showed the account in the same names as it was originally opened and there was no account in the name of Imperial Gifts & Garden Company. However, defendant Del Dio testified that when he gave Spero the five checks on or about November 15 he told him that they could not use the words 'Atlantic Mills' any further in their business and consequently they had incorporated under the name of Imperial Gifts & Garden Company of which they were the only stockholders. He further testified that Spero then said he had 'looked up our credit and that he knew more about us than we did ourselves.' Apparently nothing was said about giving credit to the new corporation in their place but Del Dio inferred that by accepting the checks Spero had intended to do so.
Spero testified in rebuttal that he never extended credit to the corporation and that all invoices of merchandise were always made out to Atlantic Mills Flower & Garden Shop. He further testified that neither Del Dio nor Iannotti had ever asked for such credit or had ever advised him that te corporation had taken over the business of the Atlantic Mills Flower & Garden Shop.
On this evidence the trial justice concluded that plaintiff had not agreed to substitute the corporation for the partnership debtors to whom alone it had extended credit. He expressly found that it was 'perfectly natural' for plaintiff to accept payment from anybody who wanted to pay on the debtors' account. Since there was no dispute that there was...
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... ... pleaded in defense the defendant has the burden of ... proof." New Eng. Doll & Novelty Co. v. Del ... Dio , 95 R.I. 450, 452, 187 A.2d 781, 782 (1963). While ... ...
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Krupinski ex rel. Scharnhorst, Inc. v. William A. Deyesso, Scharnhorst, Inc.
...and sufficient evidence, and where it is pleaded in defense the defendant has the burden of proof." New Eng. Doll & Novelty Co. v. Del Dio, 95 R.I. 450, 452, 187 A.2d 781, 782 (1963). While the parties disputed whether a novation occurred at the motion hearing,15 the Court—without specific ......
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