Cohen v. Fink Piano Co., Inc.

Adkins, J., delivered the opinion of the Court. The appellee sued the appellant for the balance alleged to be due for a radio and certain cartage charges. The suit was brought on the common counts. According to the testimony on both sides, the understanding was that radios were to be sent on approval.

Joseph Fink, an officer of the plaintiff, with whom the defendant dealt, testified that, after a trial of -the first radio sent out, which was a Radiola-62, defendant said, “It is the best one I have heard yet, but in order to satisfy me, I want you to send me another Radiola-62 out”; that in about two weeks the defendant returned and said, “That is not as good as the first one, but they tell me the Stromberg-Carlson is a wonderful set”; that, upon witness remarking that this would be the third set, defendant agreed to pay the cartage, whereupon the set was sent out; that later defendant returned, saying he would like to try another make of which he had heard, and that also was sent; that, after some days, defendant came back and asked, “Have you still got that first Radiola-62 you sent out,” witness replied in the affirmative, and defendant said, “You send that out, and if it is O. K. I will send you a check by Monday”; that witness made a special price with defendant of $315 plus cartage amounting to $12, and delivered the set; that in about ten days defendant came back and said, “Mr. Fink, that set is fine, it works beautifully, but I want to just try a couple more days”; that witness sent a service man to go over the radio with defendant so that he might be satisfied, and after that defendant came in and promised to send a check by the following Monday. This was not done, but later defendant gave an employee of plaintiff, who was sent to collect, a check for $155; that the first four sets were sent on approval, but, when the first set