198 P. 426 | Cal. Ct. App. | 1921
This is an appeal from a judgment in favor of the plaintiff and against the defendant for the sum of $1,326.55 and costs. Defendant admits a principal indebtedness of $569.11. The action is upon an express contract for the purchase of a quantity of grain. On the twenty-eighth day of August, 1914, the plaintiff granted the defendant the following option:
"Los Angeles, Cal. Aug. 28th, 1914.
"In consideration for One (1) Dollar to me in hand paid, I hereby give an option to the Farmers Grain Milling Co. to buy my crop of Light Seed oats consisting of about 1600 sacks, at a price of $1.25 per hundred pounds, free on board cars at Owensmouth. This option is to be in force until Sept. 6th, 1914, and if not exercised by the Farmers Grain Milling Co., before noon of that date it shall be null and void.
"GEO. LEWIS."
On the thirty-first day of August the defendant exercised the option by letter and asked confirmation by return mail. Instead of writing, plaintiff went to the office of the defendant and confirmed the exercise of the option verbally. Thereafter the plaintiff ordered a car from the Southern Pacific Railway Company at Owensmouth for the purpose of loading it with the oats. The railway company's agent spotted the car and the plaintiff placed therein 541 or 542 sacks of oats as contracted. While the car was not completely loaded it, *213 together with the oats, burned. No bill of lading had been issued by the railroad company and no notice had been given to the agent of the railroad company that the car was ready for shipment.
The defendant insists that at the time the oats were burned they still remained the property of Lewis. Both sides agree that the risk of loss followed title. Upon this appeal it is necessary to determine who owned the oats at the time they were destroyed. The answer to this question involves a construction of the contract composed of the option agreement and the letter exercising the option with the view to determining whether this entire contract thus constituted was executory or executed.[1] If it be regarded as an executory contract, title could not be said to have passed, for where shipment is made by a common carrier it is held that delivery is not completed until the vendor has relinquished his control over the car and given notice to the carrier that it is ready for shipment. (Hutchinson on Carriers, 3d ed., c. 4, sec. 125; Basnight v.Atlantic Ry. Co.,
The judgment is modified by reducing it to the sum of $569.11, with interest thereon at the rate of seven per cent per annum from the twenty-first day of October, 1914, this *215 being the date on which the defendant received the delivery of the grain, etc., not in dispute upon this appeal, and, as so modified, it is affirmed.
Finlayson, P. J., and Works, J., concurred.