292 P. 176 | Cal. Ct. App. | 1920
The defendant appeals from a judgment against him for $1,250. He presents a single question *666
of law in support of the appeal, based on an objection to the admission of evidence over the objection that it was an attempt to change the terms of a written contract by parol in contravention of section
The respondent sued on two counts, the second being in the ordinary form of an action for debt. In the first count it was alleged that, in May, 1918, the defendant sold to plaintiff 500 lambs at the agreed price of seven dollars per head; that the plaintiff then paid the defendant $250 on account, and the defendant agreed to deliver the lambs to the plaintiff at Helm Station, in Fresno County, on or about May 26, 1918; that plaintiff was ready and willing to pay the balance of the purchase price on May 26th and thereafter; that the defendant had failed and refused to make delivery, and, on information and belief, that defendant had sold the lambs to others on or about May 26th, and still retained the $250 paid him; and that plaintiff had been damaged in the sum of $1,750. The appellant alleged that the plaintiff agreed to take the lambs on May 26th at Helm Station and to pay for them; denied the readiness of the plaintiff to pay the balance of the purchase price; denied that the defendant had failed or refused to deliver, and alleged that he was willing to deliver on May 26th; that he then offered delivery; that the plaintiff then refused to accept delivery, and that the defendant thereafter held the lambs for a period of five days, up to June 1st. He denied damage, and denied the debt set up in the plaintiff's second cause of action.
The court made general findings, first, that all the allegations in the first cause of action in the complaint were true, except as to the amount of damages, which the court found to have been $1,250, and, second, that all the allegations of the second count were true, except as to the amount of the debt, which was found to be $1,250.
Exclusive of the evidence to which the objection was interposed, the record shows that May 26, 1918, was Sunday. The appellant stands upon what he considers his strict contractual rights. An act appointed by law or contract, other than an act of necessity or mercy, to be done on a holiday, may be performed on the next business day. *667
(Civ. Code, sec.
The appellant contends that the respondent was bound to accept and to pay for the lambs at Helm Station. The respondent was not bound to pay for them until the appellant delivered the lambs, or in good faith offered to perform the contract.[1] He never took the lambs to Helm Station, and, therefore, must base his right on an offer of performance. His evidence shows affirmatively he made no such offer. An obligation is extinguished by an offer of performance only when made in accordance with the rules prescribed in sections
The reason why the respondent did not go to Helm appears from the evidence to which objection was made. The respondent testified that on May 24th the appellant visited the respondent in his office in Fresno and said that the 26th would be Sunday and they could count the lambs on another day. The respondent replied that with stock Sunday or Monday was just the same, but that the appellant could bring them any time on Monday, Tuesday or Wednesday to the respondent's main corrals. The appellant testified that he had a conversation with the respondent at the time stated, and that "I saw the contract dated on Sunday, so I went on the 24th and asked him if he was going to take the lambs out on Sunday, and he *669
said: "Didn't you ever work on Sunday?' That was all that was said about it." The trial court probably believed the evidence given by the respondent upon this subject. The essential conditions of the contract of sale were the delivery of the lambs and the coincident payment of the balance of the purchase price. Neither the time nor the exact place of delivery was of the essence of the contract. [2] Regardless of the rule requiring modifications of written contracts to be evidenced by writing, one party to a contract may not on the pretense of desire on his part to depart from the exact performance of a nonessential detail induce the other party to believe that delivery of goods sold will not be made either at the time or place specified in the contract, and then take advantage of the other's reliance upon his representations. To apply section
The judgment is affirmed.
*670Nourse, J., and Langdon, P. J., concurred.