228 P. 676 | Cal. Ct. App. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *141 The plaintiff sued for and recovered a judgment for $1,483.41 alleged to be owing on a sales contract. The defendant has appealed from the judgment and has brought up the judgment-roll and a bill of exceptions.
The plaintiff pleaded its cause of action in three counts. In the first count it pleaded that within two years last past, at the city and county of San Francisco, state of California, defendant above named became and now is indebted to plaintiff above named in the sum of $1,433.25, being the difference between the purchase price of five cars of Sacramento Valley prunes purchased by plaintiff from defendant and the resale price of said prunes from plaintiff to defendant. The second count was based on an open book account, but at the close of the plaintiff's case that count was dismissed. The third count pleaded an account stated. The defendant interposed an answer which contains specific denials, but does not plead any new matter. The trial court made findings in favor of the plaintiff in which it found on the first count and on the third count in favor of the plaintiff.
The bill of exceptions contains three memorandum contracts. By the first one, which is dated February 1, 1922, the plaintiff bought of the defendant five carloads Sacramento Valley prunes, crop of 1922, 60,000 pounds to the *142 car, sizes ranging 40/50 to 70/80 at 6 3/4 cents bulk basis, time of shipment September, October 15, 1922. The second contract was dated August 16, 1922, and is in form slightly less formal than the first instrument. It purports to be a sale by the defendant to the plaintiff of the same quantity of the same article at 7 1/4 cents per pound. That paper contains this additional matter: "This is a resale of G. V. Pettigrew Co. Inc. regular dried fruit contract dated February 1, 1922." On August 18, 1922, the parties executed another instrument which both parties conceded to be a more formal statement of the transaction dated August 16, 1922.
On the trial of the case the plaintiff called as a witness Alberto Barrios, vice-president of the plaintiff corporation, and did not call any other witnesses. The defendant did not call any witness. As to what was the intention of the contracting parties at the time that the instrument dated February 1, 1922, was executed, or when either of the subsequent instruments were executed, the record is silent, except that Mr. Barrios testified that he had several conversations with Mr. Pettigrew subsequent to the second contract of August 18, 1922, and in one of those conversations, after Mr. Pettigrew had bought the prunes from him, all the witness wanted was the difference in the price or the profit he made; in other words, it was a wash sale and the witness was only interested in the difference between the two contracts because Pettigrew was supposed to deliver to Barrios and Barrios was supposed to deliver to Pettigrew. The witness further stated that he did not know whether there were any prunes — any actual prunes represented by the contract. He expected prunes if he had sold to a third party. When the witness entered into the contract, August 18, 1922, the whole transaction became a wash sale and the witness was only interested in the difference between the two contracts. That is done every day. On October 2, 1922, the plaintiff presented the defendant a bill, "To wash-out on five cars, 60,000 pounds net each 40/70 Sacramento Valley prunes . . . difference due us $1433.25" The appellant contends that the whole transaction was a "wash-out" sale within the technical meaning of that expression as used by the trade when the trade is referring to a gambling contract. (Stafford etc. Co. v. Rock etc. Co.,
[6] The appellant contends that the trial court should not have found in favor of the plaintiff on the issue of a stated account. The respondent replies that the finding is *144
not necessarily important because the trial court found against the appellant on the first count. We think the respondent's position is correct. [7] The appellant also contends that the trial court should have estimated the damages by following sections
[8] Complaint is also made that the trial court erred in receiving in evidence the contract dated August 16, 1922. The point in that connection seems to be that said paper was superseded by the paper dated August 18th. To this objection there are several answers. The contract dated August 16th, as stated above, is very slightly less formal than the contract dated August 18, 1922. The appellant refers to the first as a sales memo, whereas it could have referred to either of them as a sales memo with equal propriety. Moreover, each paper seems to contain every element to constitute a contract. The paper dated August 16th had on its face, "This is a resale of C. V. Pettigrew Inc., regular dried fruit contract dated February 1, 1922." That statement was not a necessary part of the contract and merely served to identify the goods. No objection to that feature was contained in the objection interposed to the paper when it was offered in evidence. Except as we have recited, the provisions of the paper dated August 18, 1922, do not differ from the provisions of the paper dated August 16, 1922, and therefore the appellant could not in any manner have been prejudiced by the ruling of the trial court admitting in evidence the paper dated August 16, 1922.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred. *145