Utah Ass'n of Creditmen v. Buller

• Decision Date: 10 December 1920
• Docket Number: 3510
• Citation: 194 P. 127,57 Utah 270
• Parties: UTAH ASS'N OF CREDITMEN v. BULLER
• Court: Utah Supreme Court

194 P. 127

57 Utah 270

UTAH ASS'N OF CREDITMEN v. BULLER

No. 3510

Supreme Court of Utah

December 10, 1920

Appeal from District Court, Third District, Salt Lake County; John F. Tobin, Judge.

Action by the Utah Association of Creditmen against N. J. Buller. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Walton & Walton, of Salt Lake City, for appellant.

T. O Sheckell, of Salt Lake City, for respondent.

WEBER J. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ concur.

OPINION

WEBER, J.

Plaintiff sued to recover $ 330, a balance due on a sale by it to defendant on the furniture, fixtures, and equipment of the Welcome Cafeteria. The defense was that title failed to some of the personal property to the extent of the claimed balance.

The answer alleges that the Western Furniture Company was the owner of some of said property, and that the defendant was forced to pay said Western Furniture Company therefor in order to hold the property. Plaintiff sold the property to defendant in September, 1918, for $ 2,040. Defendant paid thereon $ 1, 710 and refused to pay the balance.

Plaintiff acquired title as assignee for the benefit of the creditors of Mr. and Mrs. G. A. Alder who had been doing business as the Welcome Cafeteria. The case was tried to the court without a jury. Defendant appeals from a judgment in favor of plaintiff.

A bill of goods was bought by the Alders of the Western Furniture Company in 1917. The evidence is conflicting as to whether anything was said at the time of the order for the goods about retention of title. The Alders had purchased similar goods from the Western Furniture Company before. Defendant offered to prove that in the prior dealings the furniture company had taken title retaining notes. The proffered testimony was excluded by the court. This ruling is assigned as error. It is claimed by appellant that the offered testimony bore directly upon the probabilities as to whether the witness for appellant was correct in his testimony that his recollection of a conversation which he as a salesman of the furniture company had with Alder was that the purchasers were to sign a title retaining note, or whether the Alders were correct in testifying that nothing was said as to title retaining notes.

On "Course of Conduct or Dealing" it is said in 17 Cyc. 281:

"The presumption of regularity is founded upon an inference of fact. Whenever, in the opinion of the court, such a relevant course of conduct or dealing on the part of a given individual is established as to render its continuance to the time involved in the issue probable, its existence may be used as evidence that he acted in accordance with it on a particular occasion."

We fail to perceive that the excluded testimony was relevant or that it had any probative value. No necessary or logical connection existed between the prior dealings entered into by the parties and the latter sales. If admitted, the testimony that prior dealings had resulted in the execution of title retaining notes for property purchased by the Alders from the furniture company would tend to prove that the credit of the Alders had improved rather than that their testimony at the trial of the present...