Regal Motor Products, Inc. v. Bender

• Decision Date: 13 March 1956
• Citation: 102 Ohio App. 447,139 N.E.2d 463
• Parties: , 74 Ohio Law Abs. 162, 2 O.O.2d 477 REGAL MOTOR PRODUCTS, Inc., Plaintiff-Appellant, v. AI BENDER, dba U. S. Auto Parts and U. S. Auto Parts, Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 447

102 Ohio App. 447

139 N.E.2d 463, 74 Ohio Law Abs. 162, 2 O.O.2d 477

REGAL MOTOR PRODUCTS, Inc., Plaintiff-Appellant, v. AI BENDER, dba U. S. Auto Parts and U. S. Auto Parts, Defendants-Appellees.

Court of Appeals of Ohio, Franklin County.

March 13, 1956.

Maugan & Vacca, Columbus, for plaintiff-appellant.

Thomas W. Applegate, Columbus, for defendants-appellees.

MILLER, Presiding Judge.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio, rendered in favor of the plaintiff for the sum of $154.21 plus interest from January 16, 1953. The plaintiff is appealing because of the inadequacy of the amount of the judgment. The record reveals that the action was instituted by Regal Motor Products, Inc., seeking to recover upon an account the sum of $796.70 plus interest for goods sold and delivered to the defendant, Al Bender. To this petition the defendant has filed the following answer:

'Defendant for answer to the petition of plaintiff admits that he is an individual operating under the trade name and style of U. S. Auto Parts, and that he received the merchandise covered by the invoices attached to the petition of plaintiff and that the agreed price for the same was $773.50, and that none of said sum has been paid.

'Defendant further says that merchandise covered by said invoices was misrepresented to the defendant as being readily saleable merchandise and that the demand for the same would create a market for this product. Defendant further says that plaintiff and its agents well knew that said merchandise was not in demand and that defendant would not be able to sell the merchandise in the quantity shipped to him.'

The plaintiff's reply to the answer denies that the merchandise was misrepresented to the defendant. The record reveals that on July 15, 1952, the defendant signed an order for the merchandise which is the subject of this action; that the same was received by the defendant on or about August 12, 1952; that it consisted of 175 units of accessory mouldings for used automobiles which were to be used to make them appear as more recent models; that upon receipt of the goods it was placed in stock and salesmen were given descriptive circulars on the same and an effort was made to sell the various units to the defendant's retail customers, the plaintiff acting as a jobber.

The record reveals further that the defendant sold 38 of these units, for which the court rendered judgment and held that the balance of the units were held by Bender subject to the orders of the plaintiff.

During the course of the trial the Court admitted into evidence over the objection of counsel for the plaintiff, testimony of the defendant to the effect that the units were not as represented; that some of them were too long to fit the model car they were intended for; that they were chrome plated and not aluminum plated as represented; also, that they were not readily saleable for the reason that it took too much time and labor to install them. Now, did the Court commit prejudicial error in admitting this testimony? We are of the opinion that it did as to the alleged defects in the merchandise. The issues were raised by the pleadings and the testimony should have been limited to them. The defendant was attempting to establish a breach...