179 F. 466 | 9th Cir. | 1910
(after stating the case as above). As will be seen from the foregoing statement, the plaintiff sued for the balance alleged to be due for 2,297,175 feet of California sugar and white pine lumber of the grade of No. 2 shop and better, alleged to have been delivered to and received by the defendants under and pursuant to the terms of the written contract between the parties. The trial court found as a fact (and which finding appears to be in accordance with the evidence) that, although the plaintiff delivered under the contract 2,779,276 feet of lumber at places designated by the defendants, a large amount of the lumber so delivered was' of a lower grade than No. 2 shop and better and “was not sorted so that the lumber of a quality of No. 2 shop or better was separate from that of inferior
The trial court further found, in effect, the facts to be that of the lumber so delivered by the plaintiff the defendants sorted out 1,774,-648 feet of No. 2 shop and better, which was all of that grade so delivered by the plaintiff, and which 1,774,648 feet the defendants shipped under the contract and paid the plaintiff therefor in full; that a large amount of the 2,779,276 feet delivered by the plaintiff was rejected by the defendants as not being No. 2 shop and better, and was piled separately; and that of the lumber so rejected the plaintiff sold 19,000 feet to one Cunningham prior to November 9, 1905, and also a large number of feet of it to one If. W. Warren.
In view of these findings of fact upon the issues raised by the pleadings, it is impossible to sustain the judgment in the plaintiff’s favor, for it is a cardinal rule that a plaintiff in an action at law must recover upon the allegations of his complaint or not at all.
In view, however, of the findings in respect to the oral contract between the parties (concerning which the complaint is entirely silent), and of what was done under it, we think it proper to remand the case for a new trial, with leave to the respective parties to amend their pleadings, should they so desire.
The judgment is reversed, and the case remanded to the court below for a new trial.
