Dr. Dan's affidavit was accompanied by Dr. Dan's client reports (Appendices 4A and 4B) regarding the purchase of goods and the goods that were withdrawn and the balance of the debt in respect thereof, detailing the dates and amounts of checks that were paid as well as future checks. Appendix 4B included correspondence from someone on behalf of the plaintiff in respect of the defendant's debts for goods that were withdrawn, but no amounts were specified. Appendix 4C includes correspondence in which Dr. Dan wishes to continue cooperating with the plaintiff and states that she will settle everything and start paying little by little.
On the face of it, these are documents prepared by the plaintiff, but it was not clarified by whom they were prepared and their editor was not brought to testify. Moreover, from the correspondence itself, it is not clear whether this is a commodity that was already withdrawn by the defendant.
- In light of all the above, I am not persuaded by the plaintiff's claim that she purchased for the defendant goods worth ILS 2 million, which she stores to this day in her warehouses. This was not proven, and beyond that, the plaintiff herself confirmed that at the end of the day the merchandise or part of it was not supplied to the defendant without clarifying which part of the merchandise was supplied and what its value was, except for the sum of ILS 204,000 that was claimed to have been paid. Therefore, even if I had accepted the plaintiff's version that she had indeed purchased goods for the defendant in the amount of ILS 2 million based on an oral conversation, she would not have been entitled to remain with all or part of the goods in her hands, to fill an amount in a check that was given to her as collateral, and to claim the full consideration from the defendant without the worker giving the consideration in respect of it. Therefore, insofar as this is the case, at most the plaintiff has a contractual claim regarding a breach of agreement by the defendant, which she had to prove, but she cannot be seen as having given consideration for the checks and obligating the defendant to pay them.
- Moreover, even if I were convinced that the goods were in the warehouses at the value of the claim before me, the plaintiff also did not have the wisdom to take care to reduce her damages. To the extent that the plaintiff does indeed hold the goods for her customers, and saw that the defendant did not meet her obligations, she could have sold the goods, which naturally have an expiration date, and thus reduce her damages. But the plaintiff did not do so.
Mr. Meisler claimed in his testimony that there was still merchandise in the warehouses that was worth more than the amount of the transaction with the defendant, and that with regard to the defendant's merchandise, they were instructed that it could not be sold because it was not possible to make a double sale and in fact they could not deliver goods that were already sold. On the other hand, he testified that the plaintiff reached arrangements with other customers regarding their merchandise, which appears to have been sold (in the minutes, pp. 50, 28-30 and at p. 51, 1-13).