93 Cal. 532 | Cal. | 1892
This action is upon a bond for two thousand five hundred dollars, executed by the Field’s Biscuit and Cracker Company as principals, and R. Percy Wright and William Collins as sureties.
Judgment passed for the plaintiffs, from which, and from an order denying a new trial, this appeal is taken.
The defendant corporation had contracted with the plaintiffs for the sale and delivery to it of certain show-cards, labels, and linings for boxes, and had failed to Day for them as agreed upon, and the plaintiffs had
The corporation, it is alleged, failed to pay what it owed for goods sold and delivered under its contracts, and this action was then brought to recover what was claimed to be due the plaintiffs.
There seems to be no question, from the defendant corporation’s answer, but what at least $1,960.50 was due the plaintiffs for goods sold and delivered, so that the real matter for determination is, whether the court improperly allowed evidence to go to the jury as to the cost of certain plates from which labels contracted for by the defendant corporation were to be printed, and in refusing to grant, as asked for, two instructions of the defendants.
It is insisted that there was no contract to furnish plates, no claim made in the complaint for their value, and no responsibility on the bond as to them.
The contract, with reference to which the bond was made, was for the sale and delivery of certain labels, among other things, and it appears that as a necessity for the printing of these labels, and their delivery to the defendant corporation under the contracts, the , plates had to be made at a certain expense to the plaintiffs, and that after they were thus made, and the expense incurred by the plaintiffs, one of the defendants, R. Percy Wright, the agent and attorney for the other parties,
The instructions to be considered, asked by defendants, were these: —
1. “The jury must leave out of consideration all evidence respecting goods sold by plaintiffs to the defendant Field’s Biscuit and Cracker Company, which are not shown to have been actually delivered.”
2. “The jury must leave out of consideration all evidence respecting goods sold or delivered by plaintiffs to the defendant Field’s Biscuit and Cracker Company, except show-cards, labels, and manila linings for boxes.”
The court qualified the first instruction by reading to the jury section 1141 of the Civil Code, which is as follows:—■
“ See. 1141. Title is transferred by an executory agreement for the sale or exchange of personal property only when the buyer has accepted the thing, or when the seller has completed it, prepared it for delivery, and offered it to the buyer with intent to transfer the title thereto, in the manner prescribed by the chapter upon offer of performance.”
The court then-said: “Now, of course, if in this case the plaintiffs prepared these labels on the order of de
The defendants contended that nothing but manual delivery will satisfy the terms of the bond.
The record shows that certain labels contracted for were prepared and offered for delivery to the defendant corporation, which it did not take, but left them in the hands of plaintiffs. The corporation was responsible for the payment of the contract price for them, and the court committed no error in the course pursued.
The second instruction, not given as asked, was not proper under the facts of the case. The price of the plates were as much included in the contract, if the defendant refused, after the expense was incurred at its request, to allow the labels to be printed and delivered, as if the labels had been printed and refused by the defendants when offered for delivery. The plates were a necessary ingredient in printing and delivering the labels, and the fault of having them made and left as useless in the hands of plaintiffs was that of the defendant corporation. The instruction excluded all compensation on this head to be taken into consideration by the jury.
The contract and bond were both made with reference to the law governing such sales of goods, and we see nothing in the admission of evidence, or the action of the court as to instructions, in the least degree prejudicial to the defendants. (Upstone v. Weir, 54 Cal. 126.)
The appeal has no merit, as we think, and the judgment and order should be affirmed.
Belcher, C., and Vanclief, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.
De Haven, J., concurred in the judgment.
Hearing in Bank denied.