Welkner v. Di Carlo

Sloan, J., delivered the opinion of the Court. Herbert R. Welkner, trading as Bell Refrigeration Sales and Service Company, the appellant, brought suit is assumpsit against Dominic DiCarlo and Rene DiCarlo, appellees, on a contract for the sale by the appellant of a “G. E. (General Electric) wet beverage cooler, completely reconditioned, service guaranteed one year free,” for §250, of which $36 was paid in cash, and the balance to be paid in twenty-three monthly installments of $9 each, and a final installment of $7, according to the conditional sales contract executed by the parties. To the contract there was attached a confessed judgment note, which was not entered as such, but upon which suit was brought.

It was stipulated in the contract: “That any note given in connection with this contract is understood to be as evidence of, and not in payment of, the obligation thereunder, and may be negotiated without any condition hereof, even though at the time of execution it may be temporarily attached hereto by perforation or otherwise.” The contract and note had been assigned to a third party; but when the suit was brought, it was in the hands of the original contractor and the payee of the note, so the court was not concerned, nor are we, about the rights of an innocent purchaser or third party. The trial was before the court sitting as a jury. There were no exceptions, no prayers for instructions. The judgment being for the defendants, the plaintiff appealed.

By Rule 9 (c), Part Three, III, Rules of Prac. & Proc., in effect September 1, 1941, it is provided that: “No re ¹⁷ quests for instructions and no objections or exceptions to the judgment or to the opinion of the court are required for the purpose of review,” and “Upon appeal, the Court of Appeals may review upon both the law and the evidence, but the judgment of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” In this court, the defendants did not file a brief and no one appeared for them. The contention of the defendant, at the trial, was that the plaintiff had not only sold them a defective machine and had failed to give the “service guaranteed,” and that the cooler had become useless and had to be discarded, and these were the reasons assigned by the court for its decision, given in accordance with the rule, which provides that in trials by the court it “shall dictate to the court stenographer, or prepare and file, a brief statement of the grounds for its decision and the method of determining any damages awarded.” It also provides: “When a proceeding has been so tried by the court, an appeal from the judgment if allowed by law, may be taken according to the practice in equity.” The evidence of the plaintiff, was that the note was for $214, on account of which the defendants made four payments of $9 each, leaving a balance of $178. The office manager, Richard H. Gunther, testified that the plaintiff answered two complaints, and made the repairs required, and later Mr. DiCarlo called several times and told him to have his truck call and take it out, but was told, “he had bought the cooler and he would have to pay for it.” The defendant, Mr. DiCarlo, testified that he called several times, but