Stern & Co., Inc., of Rhode Island v. J. P. Brady Co., 9550

• Decision Date: 29 June 1955
• Docket Number: No. 9550,9550
• Citation: 83 R.I. 246,115 A.2d 523
• Court: Rhode Island Supreme Court
• Parties: STERN & CO., INC., OF RHODE ISLAND v. The J. P. BRADY COMPANY. Ex.

Page 523

115 A.2d 523

83 R.I. 246

STERN & CO., INC., OF RHODE ISLAND v. The J. P. BRADY COMPANY.

Ex. No. 9550.

Supreme Court of Rhode Island.

June 29, 1955.

Temkin & Temkin, Alfred M. Silverstein, Providence, for plaintiff.

Fergus J. McOsker, Providence, for defendant.

FLYNN, Chief Justice.

This is an action in assumpsit on book account and on the common counts for a balance alleged to be due for merchandise sold by the plaintiff to the defendant and appearing in an open account on the plaintiff's books. The defendant filed first a plea of the general issue and secondly a plea in set-off. The case was tried in the superior court before a jury, and at the conclusion of the evidence for the plaintiff the trial justice granted the defendant's motion for a nonsuit. The case is here on the plaintiff's single exception to such decision.

The plaintiff at the time of this action was a Rhode Island corporation and a distributor of television sets. The defendant named in the writ and declaration is 'The J. P. Brady Company, a Rhode Island Corporation.' The only witness for plaintiff was its credit manager, who had approved the credit of defendant, had set up the account in plaintiff's books of account, and had the custody and keeping of them. His testimony was to the effect that plaintiff had previous business dealings with Park Square Sales Company, a corporation in the town of North Smithfield, with which it had a separate account; that he had investigated the references and approved the credit of that company; that later in the course of his work as credit manager he received an order on which was written an unsigned notation indicating to him that the references on the Park Square Sales Company account could be used also in connection with the new proposed account with defendant; and that from such notation he also inferred that defendant was the parent company of Park Square Sales Company.

However, he had no personal knowledge of the sale or the parties thereto, and the order was not signed by any salesman or official of the defendant company. Nor could he actually identify the handwriting in the unsigned notation as that of any particular salesman. No reference appears in such order, account, or in plaintiff's books to the effect that it was the account of the defendant company or corporation, or that it was related to the parent company of the Park Square Sales corporation.

He attempted, over objection, to testify that his approval of credit here was based on contents of the order slip which indicated to him, because of the same references, that the two concerns were related. However, he could point out nothing on the order which would reasonably justify such a conclusion. Moreover when pressed for a reason why, if he had made such a conclusion from the notation, he had instituted the account separately in the books in the name of J. P. Brady individually, he was unable to give any reason or to explain the difference. Furthermore he was unable to testify from personal knowledge whether the same salesman had done business with Park Square Sales Company and the defendant, or with J. P. Brady individually rather than The J. P. Brady Company, or whether the two companies were actually parent and subsidiary corporations.

The plaintiff, in opposing the motion for a nonsuit, argues that on such motion the trial justice is obliged to view the evidence and reasonable inferences therefrom most favorably to plaintiff, and that here the trial justice erred in not applying that law to the evidence. It is further argued that any testimony bearing upon the identity of the account in the books involves an issue of credibility and of fact rather than a question of law. Finally he contends that defendant's plea in set-off was tantamount to a plea of confession and avoidance, and therefore that such admission...