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NAME

MINNIE ALICE HENRY

YOUR TERMS $10... ED. TUES.

CASH BEFORE DELIVERY S

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The undersigned Seller hereby sells, and the undersigned Purchaser hereby purchases for the TIME PRICE and subject to the terms hereinafter set forth, the following property, delivery and acceptance of which in good order is acknowledged by the Purchaser, vis: Chantity New Tax Style-Mod Serial No.

Merchandise

"Optical hernice 119.00

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5.00

114.00

Carrying Charge $

Time Price

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Payable $ 10.00

and in Installments of 3.

119.00 Succeeding

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The Purchaser agrees to make payment of the total time price as set forth, in accordance with the terms of a certain promissory note of even date. The Purchaser agrees to pay said total contract TIME PRICE as above set forth until full balance is paid, final installment to be the balance remaining unpaid This contract is payable at the office of the Heller, or, his heirist or assigneetal and shall hear interest after maturity at the highest legal rate, and a carrying charge after maturity of one and one half per rent, per month on the unpaid balance. If payments are not made within five (5) days after due date. Purchaser agre to pay into charge of 11 00 on any installment in default in addition in the regular installment. Should Purchaser fail to make any payment hereinrequired when dut. Seller may refer the matter of the collection of such delinquent installments to any person or collection agency or to the collection department of Seller for collection and if the same be referred. Purchaser agrees to pay to Seller a reasonable enflection charge; and, if the services of an attorney be employed for the enforce ment of any of the obligations of Purchaser, or rights of the Seiler or Seller's assignee(s), by muit or otherwise, Purchaser agrees to pay reasonable attorney's fees. Purchaser waives any impediment to suit on this conditional anies contract. If not paid when due, by irrevocably appointing JOSEPH H. TASHOF, 719 7th Street. H.W., Washington, DC. no his agent to rereive servire of any process and transmit notice forthwith by certified mail to the last known address of the party) (ies) und

Purchaser acknowledges that he has been advised as to both cash price and time price of the property and that he realises the time price is greater than the each price and that he has elected to pay the time price. Title to said property shall not pass to Purchaser until all sums due under this contract are fully paid to cash. Time is of the essence of this contract, and if Purchaser default in complying with any of the terms hereof. Seller, at his option and without notice to Purchaser, mar declare the whole amount unpaid hereunder immediately due and payable, or Seller may take immediate possession of said property without demand (possession after defsuit being unlawful), including any equipment or accessories thereto, and for this purpose Seller may enter upon the premises where said property May 14 *nd remove same Seller may resell said property, so retaken, at public or private sale without demand for performance, with or without notice to Purchaser (If given. ice by mail to address furnished Seller by Purchaser being sufficient), with or without having such property at place of sale, and upon such terms and in such nners Seller may determine: Seller may bid at any public sale. From the proceeds of any such sale Seller shall deduct all expenses for retaking, repairing and selling such property, including a reasonable attorney's fee. The balance thereof shall be applied to amount due: in case of deficiency Purchaser shall pay same with interest Seller shall have the right to enforce one or more remedies hereunder, successively or concurrently. Acceptance by the Seller of any payment required bereunder, after same is due, shall not constitute a waiver of this or any other provision of this contract. The Seller is authorised to correct patent errore in this entrant Beller's resignee shall be entitled to all the rights of the Seller. Purchaser waives as against any assignee of the Seller any defenses, set offs or counter claims Purchaser may be entitled to assert against Seller. The Purchaser states that there is, or is to be, no other extension of credit from any source in connection with the purchase of the above described article or articles.

The Purchaser further agrees that all subsequent purchases made by any member of his household or family shall be charged to him or to his account and that Each and any signer of this agreement may he will pay for same in accordance with and be bound with respect thereto by all the Provisions of this agreement. make purchases severally and independently and charge such purchases to this necount and all signers to this agreement shall be bound by all provisions of this agreement with respect to all much future purchases.

The property which is the subject of this agreement shall not be removed from Purchaser's immediate possession or from the city or county in which Purchaser now resides, or be removed or disposed of voluntarily or involuntarily, until all payments shall have been made and title vested in Purchaser. It is agreed that no other agreement or guarantee, oral or written, expressed or implied shall limit or qualify the terms of this contract, and that no waranty of said property has been made unless herein expressed. Purchaser agrees that Seller may at any time sell, transfer assign this agreement or any right hereunder and that all terma bereinabowe set forth for the benefit of the Seller shall inure to the benefit and operate in favor of such successor or assignee. Purchaser hereby waives as against such successor and assigns all right of recoupment, setoff and counterclaim which he has or ever might have against Seller. Seller may enforce any one or more of the remedies hereunder successively or concurrently and any such action shall not stop or prevent Seller from pursuing any further remedy he may have hereunder. This contract shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto. If for any reason and clause or provision of this agreement should be held invalid, then the remaining clauses and provisions thereof, shall be and remain in full force and effect neverthelem. Notice to Buyer:

ALL HALEM FINAL

You are entitled to a copy of this agreement at the time you sign it.

Under the law regulating installment sales in certain states, you have certain rights, among others:

(1) To pay off the full amount in advance and obtain a partial rebate of the finance charge.
(2) To redeem the property if repossessed for a default.

(3) To require, under certain conditions, a resale if the property is repossessed.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals.

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Purchaser acknowledges receipt of a true, executed copy of this contract at the time of its execution.

Witness

(Seal)

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Prin has promise to pay to the order of Leon A. Tashof T/A New York Jewelry Co.

One

10 00

on

7000

and in Installments of S

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of each succeeding

until this note is fully paid with interest on each installment after maturity at the highest lawful rate.

If any installment of this note is not paid at the time and place specified herein, the entire balance hereunder shall become due and payable forthwith at the election of the holder of the note.

The undersigned, waive any impediment to suit on this negotiable note if not paid when due by irrevocably appointing Joseph Tashof 719-7th Street, N. W., Washington, D. C., as their agent to receive service of any process and transmit notice forthwith by certified mail to the last known address of the party (ies) sued.

The undersigned, including sureties, endorsers and guarantors hereby severally waive demand or presentment for payment, notice of dishonor protest and notice of protest, and all exemptions under the laws of the District of Columbia and/or of any other State of the United States and agrees to pay 15% attorney's fees and costs of suit, in favor of the holder of this note in the event of any default All endorsers and guarantors hereon consent that the time of payment may be extended from time to time after maturity without notice to them.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 13903

STACY EVERS, APPELLANT,

บ.

HERBERT A. BUXBAUM, t/a RUBIN OPTICAL COMPANY, and DR. JOSEPH FRIEDMAN, APPELLEES.

Appeal from the United States District Court
for the District of Columbia

Decided March 6, 1958

Mr. Ralph F. Berlow, with whom Messrs. William T. an, Joseph F. Castiello, and Kent D. Thorup were e brief, for appellant.

Mr. Harold J. Nussbaum, with whom Mr. Nathan M. Lubar was on the brief, for appellee Buxbaum.

Mr. Alfred M. Schwartz for appellee Friedman.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

DANAHER, Circuit Judge: When this suit was brought, appellant's eyesight had become seriously impaired, with blindness in the right eye, allegedly due to the fault of the appellees. The complaint charged that the appellees, both inaccurately described as optometrists, were negli

gent in their treatment of the eye condition for which appellant had consulted them in that they failed "to discover and/or timely advise [him] of the presence of a tumor." A second count, incorporating the allegations of the first count, additionally charged that appellees had represented that appellant needed eyeglasses, a representation alleged to have been knowingly false. Both appellees answered, refuting appellant's allegations, and pleading separate defenses. Friedman denied he had treated Evers and, in substance, set up that he, as a licensed optometrist, acting only in behalf of the unlicensed Buxbaum, had examined appellant's eyes and reported back the type of lenses required for improving appellant's vision. Buxbaum's answer, in substance, further denied that he practiced optometry, and averred that he had made no representations as to assisting appellant's vision with eyeglasses, and that the glasses he delivered to appellant were made as prescribed by Friedman to reflect what Evers himself represented during Friedman's taking of measurements as improving appellant's "visual acuity to the best possible extent." Both appellees filed motions for summary judgment. The District Court concluded that appellant had no "cause of action" and "accordingly there does not exist any triable issue." Judgments having been entered for the appellees, this appeal followed.

This was not a case for summary judgment, which, the Supreme Court has pointed out, is authorized "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. [Citing cases]" 1

1 Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627 (1944); Dewey v. Clark, 86 U.S.App.D.C. 137, 143, 180 F.2d 766, 772 (D.C. Cir. 1950).

The appellees, as moving parties, had the burden under a strict standard of showing the absence of any genuine issue as to all material facts; indeed all inferences of fact from the proofs available must be drawn against the movants and in favor of the appellant here.2 Moreover, the movants must establish that they are entitled to their judgments as a matter of law.3

The factual allegations of the complaint, when aided by the answers, the exhibits and such portions of the depositions as have been submitted, spell out a claim for relief which stemmed originally from appellant's visit on April 28, 1956, to the Rubin Optical Company conducted by the appellee Buxbaum, an optician, who had no license to practice optometry. According to the Evers deposition, appellant then told Buxbaum: "I was having trouble with my eyes and I wanted to get them examined and see if I needed glasses." Buxbaum replied that his "doctor" was on vacation but that he could call a doctor nearby "who would examine my eyes for [Buxbaum]." Pursuant to telephonic arrangements made by Buxbaum, Evers went as directed to appellee Friedman who maintained a competing optical business nearby. Friedman, a licensed optometrist, undertook at Buxbaum's request,

26 MOORE, FEDERAL PRACTICE ¶ 56.15 (2d ed. 1953).

3 FED. R. CIV. P. 56 (c). We are no longer constrained by purely formal and legalistic statements of "causes of action." It is sufficient if the pleaded facts state a claim for which relief may be had, Rule 8(a)(2), Hickman v. Taylor, 329 U.S. 495, 501 (1947), having in mind that a plaintiff must seek to vindicate a right or to remedy a wrong. Gold Seal Co. v. Weeks, 93 U.S.App.D.C. 249, 256, 209 F.2d 802, 808 (D.C. Cir. 1954).

* See Chapter 5-Optometrists, D. C. CODE §§ 2-501-522 (1951). Even qualified optometrists are forbidden to practice medicine or to engage in the treatment of the eye or "of the diagnosis of diseases of . . . the human eye." Id. § 519. Applicants seeking licenses must be examined in

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