On the Merits.
SOMMERVILLE, J.Plaintiff sues defendant upon an open account, and for the value of certain goods consigned to it The consigned goods were returned to plaintiff, and consideration of them thus passes from the ease.
Defendant answers that it has been conducting business with plaintiff during seven years, under a contract calling for certain grades of belting and other furnishings to be supplied by plaintiff, but that during the three last years of the contract the quality of belting was not what it was represented to be, but was of an inferior quality, and not *267satisfactory to the trade of defendant; that plaintiff had been notified of its failure to ship the quality of goods contracted for, and that it, defendant, had been compelled to refund $93.70 for goods returned to it; but, as this amount has been reimbursed to defendant by plaintiff, further consideration of it passes from the case. Defendant reconvenes and claims that it has suffered losses to the extent of $5,000 because of the poor quality of the belting sold by plaintiff, and asks for damages accordingly. This claim has been abandoned.
There was judgment rejecting plaintiff’s demand, and it has appealed.
[2] The account of plaintiff is supported by evidence, and there is no dispute as to the amount. Albert E. Steidtman, witness for plaintiff, testifies that the amount due by defendant is $4,440.10.
The account between plaintiff and defendant shows that plaintiff consigned and sold to defendant some $88,314.45 worth of goods, and that during the term of seven years some $5,216.65 of inferior belting was returned by defendant to plaintiff, for which defendant was allowed credit. Defendant, in its typewritten brief in the trial court, says that the amount of returned goods was $52,165; this is in error. This reclamation, or reduction, of $5,216.65 was in accordance with the written contract originally entered into between the parties.
Defendant alleges that it made complaints to the plaintiff about the character of the goods shipped; but the evidence shows that no complaint whatever was made until June, 1911, when defendant ceased to purchase goods from the plaintiff.
Defendant offered evidence going to show that the belting which it had bought from plaintiff and sold to third parties was not up to standard, and not suitable for the trade; but the evidence does not show that the complaints of the witnesses had been communicated to plaintiff, or that reclamations made by said witnesses upon defendant were not honored by the plaintiff on demand. Defendant continued, to buy goods from plaintiff during the seven years, and to within only a few months of the time when this suit was filed by plaintiff, without communicating to plaintiff that it was not sending the goods which the defendant was ordering from it.
Defendant does not allege that plaintiff has failed or refused to repair or replace the belting that was not satisfactory in any instance, and it makes no claim for such in its reconventional demand.
Defendant, through its president as a witness, seeks to explain its failure to notify plaintiff of defective material sold, on the ground that “he hoped that the belting would improve in quality,” and he says that he therefore continued to trade with plaintiff.
Defendant admits that at the time of suit it had some $3,900 of belting on hand which it had bought from plaintiff, and for which it had not paid; but it has introduced no evidence going to show that this material on hand is unfit for use; it simply asks the court to infer that such is the case because it has not sold same, and for the further reason that some few of its customers claimed that some other belting which it had sold them was defective. This is no defense to the demand of the plaintiff for the payment of the goods bought by the defendant. Should this stock on hand be shown by defendant to be other than that which it was represented to be, the defendant, perhaps, may demand of plaintiff to replace or repair same; but no such evidence is before the court, and that contingency cannot be settled in this suit.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there be judgment in favor of plaintiff and against defendant in the sum of $4,440.10, with costs of suit in both courts.