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The undersigned Seller hereby sells, and the andersigned Purchaager hereby purchases for the TDVE PRICE dad rabject to the terms hereinafter set forth, the following property, delivery and acceptance of which is good order is aciqamledged by the Purchases, via: Genu Ne

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Other Charmes

and in Installments of 3 Total Cash Price The Parehast agree to make payment of the late time prie et forul to scoordane lub te terms of certain promisery neke of me date

The tuner sarma pawid bowl contract TIME PRICE - above wt forth unta full balance in paid. Ana installment to be the linee remaining unsalt This continet

#yable at the office of the seller an, bis heilist to maineet1 And shalt her interest after maturity at the highese bere mue, and carry in charts after maturity anne and ene half er rent. per month on the ummid halssce. 11 payments are not made in Ave () days after the ente, Parchants

lute charen of 11 A * Any inna ilment in defesake in aetition to the revolar installment. Should Purchaser fail to make say rayment bereiarained when em. Setler may refer the matter of the collection of murh delinquent installments to Any person or collection agency or to the collection department of Seller for electes ed if the same herdered, Purehacer mure to ry to heller rennushi onllection chave: and, if the service of an attorney be employed for the enfor ment of any of the chixations of Purchsener, er nichts of the Seller or seller's assineetst, hogy mit or otherwise, Purchaser agrees to pay resonable attorne' fem. Parehaser waive any impediment to sat on this eneditional eles contract. W mot paid when due, by irrevocably appointing JOSEP M. TASHOF, 719 7 Street NW Washinuton, DC ** his extent la rereive servire of any process and traumit notice forthwith boy certified mail to the laxt known address of the part) (les) med

Purchaser wieder that he has been advised to both cash price and time price of the property and that he realise the time price frenter than the cash pries and that he has elected to pay the time price. Title to uid property

shall not pear to Purchaser ants all rame due under this contract are tally paid ta en Time of the wence of the contract, and it Purchaser default in complying with any of the terms hereof, Seller, at du option and without notice to Purchaser, MA Aeria.. the whole amount unpaid hereunder immediately due and payable, or Seller may take immediate possession of maid property without demand (pesemise aer topuit being unlawful, including any guipment or accessories Chereld, and for this purpose Seller may enuar span the premises where proper ad remorosama settar may reallaid property w resten, at pable or private nie withoutte demand for performance with or without notice to Pureberre le by mall to wrew furnished Setler by Purchaser being sufficient), with or without being such property at place of male and upon such terms and

no e Seller may determine Seller may bid at any publle sale. From the proceerde al any such sale Seller shall deduct al apenses for retaking, repairine and pelling med property, Sheluding reasonable attorney'i loe. The balance thereof shall be applied to mount due: in eam of deficiency Purchaser shall pay me with Interest Seller shall have the right to enforce one or more remedies hereunder, successively or concurrently. Acceptance by the Selder of any payment required bereunder, after some in due, shall not constitute o waiver of this or any other provision of this contract. The Seller nathorised to correct patenterreme in treet Seller's Mesigner shall be entitled to all the righus of the seller. Purchaser

waives as against any signer of the Seller any defensen met ons or counter dleine Purchaser may be entitled

to mert against Seller. The Purchaser water that where le or low be, no other extension of credit from any source in connection in the purchase of the above described article or articles.

The Purchaser farther more that all absequent purchases made by any member of his lousehold or family shall be charged to him or to his count sed that he will pay for me in aceerde nee with and the band with respect thereto by pll the Provisions of this excreement. Each and any signer of this greement mes make purchases werally and independently and charse such purchases to this neeount and all turners to this Agreement shall be bound by all provisions of the agresment with reuect to a rich futur purchases.

The property whleh to the subject of the agreement shall not be removed from Parehaser's immediate possession or from the city or county in which parebunes no ruides, or be removed or dlaposed of voluntarily or involuntarily, until wll paym hall been made and title veated in Purchases. It is agreed that no other union herein axpressed. Purchaser agrees that Seller may at any time si transfer or sasign this Agreement or any right hereunder and that all terms bereinabore agreement or ruaranter, oral or written, pressed or implied shall limit or quality the terms of this contract, and that no waranty of mid property has been made set forth for the benent of the Seller shell inure to the benefit and operate in favor of such accessor or assignee. Purchaser hereby waive against sech accenen and stort and have or more hereunder successively or coneurtenu, and any such action shall not map or prevent Seller from pursuing any further remedy he may have her under. This contract shall inure to the benent of and be binding upon the bein, executors, administratora, successors and maigne of the respective partier hereto. Il for any reace was daun or provision of the agreement should be held invalid, then the remaining clauses and provisions thereof, shall be ind remain in full force and det serthele Notice to Buyer:

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 righto, among others:

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

(3) To requtre, under certain conditions, a resale if the property is repossessed.
IN WITNESS WHYREOF, the parties hereto have hereunto set their hands and seals.


7. 7th Street, MW., Washington, D. C. (Seal) Witness

of the




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Parcheser's Addre

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

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!!!..). For value received or his heirs or asigns


che promise to pay the garder of Lega A Tachof T/A New York, Sysla co Payable $........

and $

on and in Installments of $.

on the

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 forth with at the election of the holder of the note.

The undersigned, waive any impediment to suit on this negotiable note if not paid when Jue 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 aureties, 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 detaalt All endorsers and guarantor hereon consent that the time of payment may be extended from time to time after maturity without notice to them.

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United States Court of Appeals


No. 13903





Appeal from the United States District Court

for the District of Columbia

Decided March 6, 1958

r. Ralph F. Berlow, with whom Messrs. William T. pan, Joseph F. Castiello, and Kent D. Thorup were

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 negligent 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

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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.? 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,

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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).

4 See Chapter 5—Optometrists, D. C. CODE $8 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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