SMITH v. KLOPSTOCK

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District Court of Appeal, First District, Division 2, California.

SMITH v. KLOPSTOCK et al.

Civ. 9214.

Decided: November 13, 1934

Gus C. Ringole, of San Francisco, for appellants. Jerome L. Schiller and J. L. Smith, both of San Francisco, for respondent.

Plaintiff, as assignee of Thomas Hewitt, brought this action to recover the sum of $350 upon a book account for goods sold and delivered. The case was tried by the court sitting without a jury, and plaintiff had judgment as prayed against defendant I. D. Klopstock. Said defendant appealed from said judgment, and after his death the abovenamed appellants were substituted herein in his place and stead.

Appellants make the contention that the evidence was insufficient to prove a book account or to prove the delivery of the goods. In our opinion, a review of the record shows that there was ample evidence to prove both. Appellants further contend that there were such inconsistencies in the testimony of plaintiff and his assignor “as to make plaintiff's case inherently improbable.” We find no merit in this contention. Appellants deal mainly with the testimony concerning the assignment of the claim against both defendants named in the action. The uncontradicted testimony showed that defendant I. D. Klopstock ordered the furniture, directed that it be sent to the defendant R. Penberthy, and agreed to pay for the same. The fact that there may have been some confusion in the minds of plaintiff and his assignor as to whether a claim could be asserted against the defendant Penberthy as well as defendant I. D. Klopstock is immaterial on this appeal.

The judgment is affirmed.

SPENCE, Justice.

We concur: NOURSE, P. J.; STURTEVANT, J.