214 P. 451 | Cal. Ct. App. | 1923
The plaintiff was awarded a judgment by the trial court in the sum of $1,015.45, and the defendant appealed under section 953a of the Code of Civil Procedure. The plaintiff's complaint is in form a common count for money had and received. The defendant filed an answer in which he denied the material allegations of the plaintiff's complaint and in addition thereto he presented a cross-complaint. In view of the conclusions which we have reached regarding the cause of action pleaded by the plaintiff, it will not be necessary for us to consider the questions presented regarding the cross-complaint.
The uncontradicted testimony shows that on or a short time before the eighteenth day of October, 1920, the defendant had sold, of the 1920 crop, to Mr. Guccione, a carload of ripe olives which was thereafter to be cured by salting, etc., and then delivered on board of the cars at Fresno. When the plaintiff heard of that sale he went to the defendant and purchased a carload to be cured and shipped, and agreed to pay twelve cents a pound. A carload of olives amounts to twelve tons or thereabouts. The purchase so made by the plaintiff was oral and no time for the delivery was specified. But the defendant did state that after he had filled the order for Mr. Guccione that he would then fill the plaintiff's order. At the time of the purchase the plaintiff wrote out and delivered to the defendant *40 his check in the sum of $1,000 as a part of the purchase price.
[1] On the trial of the case the plaintiff did not introduce any evidence that he did at any time, except once, demand of the defendant a delivery of the olives. However, he did testify that on the fifteenth day of November, 1920, he asked the defendant to deliver to him some olives to place in a car which he was loading with grapes to ship to the east, and that the defendant did not comply with such request. The plaintiff did not introduce any evidence that thirty days or less time is a reasonable time within which to procure, pack, and ship two carloads of olives, of the current season, in the neighborhood of Fresno during the months of October and November. Furthermore, the record does not even purport to show that the contract of purchase had been rescinded by mutual consent. In the absence of a mutual rescission there can be no recovery by the vendee under such circumstances. (Tomboy Gold Copper Co.
v. Marks,
The judgment is reversed.
Nourse, J., and Langdon, P. J., concurred.