United Distributors, Inc. v. Dunaway

LOTTINGER, Judge. This is a suit on open account instituted by United Distributors, Inc. against Z. C. Dunaway, formerly a member of a commercial partnership known as “Winbourne Radio & T. V. Service”. The defendant first filed exceptions on nonjoinder of parties defendant and of no right and cause of action which were overruled. He then answered, generally denying the indebtedness and pleading extinguishment of the debt as a consequence of illegal repossession of certain property by the plaintiff. Following trial on the merits, judgment was rendered by the court below in favor of plaintiff in the amount prayed for, from which judgment defendant has appealed. The exceptions filed by defendant have not been reurged before this court and as they are obviously without merit, they will not be discussed. The petition alleges that between April 2, 1957, and April 26, 1957, the petitioner sold and delivered to Winbourne Radio & T. V. Service on open account, various shipments of merchandise of a total value of $2,639.40; that cash payments were received totalling $1,348.73, and that credit was given for certain items of merchandise which were returned in the amount of $895.-17, thus leaving a balance sued for in the amount of $395.50. Attached to the petition is a sworn affidavit of account executed by E. J. Passmore, Treasurer of the plaintiff corporation. The deposition of Mr. Passmore fully substantiates and confirms the accuracy of his sworn statement of account. The question of alleged illegal repossession is purely and simply a factual one *666 which was resolved adversely to the defendant by the Lower Court. A careful examination of the record fails to disclose where the testimony of the defendant’s witnesses was taken down or transcribed. We fail to find an agreed statement of facts or one made by the Judge of the Lower Court as required by law, therefore the judgment must be presumed to be correct. Judgment affirmed with costs.