108 Cal. App. 2d 771 | Cal. Ct. App. | 1952
Lead Opinion
Appeal by defendants from a judgment for plaintiffs in an action to recover money paid pursuant to a contract.
“Carl Lortz
“We agree to build a 12 cavity die to fabricate garden hose nozzles per sample for the sum of $1925.00. We hereby acknowledge receipt of $642.00 down payment. You agree to pay an additional $642.00 on April 2, 1946 and the balance when die is completed and sample castings are approved. We will then supply a minimum of 10,000 sets to you at 10c per set, as cast.
Very truly yours,
Universal Die Casting Co.
M. E. La Hue, (s)
M. E. La Hue, Sales Mgr.
Approved (s) Carl H. Lortz”
Upon the execution of the contract plaintiffs delivered to defendants, as the sample, a machined brass nozzle, made the $642 down payment, and on April 2, 1946, paid defendants $642. Defendants completed a 12-cavity die, and made and delivered 81 sample castings to plaintiffs. The sample eastings were in two parts, the body and the cone. Each was beveled. In order to obtain a watertight fit when the cone was placed firmly in the body, both surfaces would have to be smooth and regular. Precision was required. The two parts constituted a set. Plaintiffs assembled the parts and when put together the sample castings leaked and for that reason they were not approved by plaintiffs.
Plaintiffs sued to recover the two payments of $642 with. interest. Defendants cross-complained for the balance of the contract price, loss of profits, and sales tax.
The court construed the contract as requiring defendants to make a die and from it manufacture nozzles which did not leak water when in use. It found that defendants did not at any time deliver or offer to deliver any nozzle which did not leak, that the 81 sample castings leaked water when in use, and rendered judgment for plaintiffs for the two $642 payments with interest. Defendants appeal.
Defendants contend the court erred in construing the contract, erred in its rulings on evidence, and that plaintiffs do not have legal capacity to sue because they did not publish a certificate that they were doing business under a fictitious name or file an affidavit showing such publication with the county clerk.
After the contract was entered into, defendants prepared plans and specifications of the nozzle to be cast. On March 29, 1946, plaintiffs, in writing, approved the plans and specifications. They showed that the castings were to be made of a material called “Zamak,” while the sample nozzle was made of brass, showed tolerances in the two parts up to 5/1000th of an inch, plus or minus, or a possible l/100th of an inch, and described the work to be done as “die casting.” The sample was then returned to plaintiffs. After the plans and specifications had been approved by plaintiffs, defendants made the sample castings in conformity therewith and delivered them to plaintiffs. Defendants, after
The point that plaintiffs have no legal capacity to sue was not properly raised by demurrer nor was it alleged in the answer; it cannot, therefore, be raised on appeal.
Reversed.
Shinn, P. J., concurred.
Concurrence Opinion
I concur in the judgment and the part of the opinion wherein it is held that the court erred in not receiving the plans and specifications in evidence. Although plaintiffs alleged that the die was to be made according to certain plans and specifications, they objected to the plans and specifications when defendants offered them in evidence. If the plans and specifications constituted a modification of the agreement of March 7th, then of course the whole contract was not before the court.
With respect to the agreement of March 7th (if there has been no modification of it), I agree with the interpretation thereof made by the trial judge to the effect that defendants agreed to make a die by means of which nozzles of the same kind and character as said sample nozzle could be made. As stated by the trial judge, the object which plaintiffs had in mind was to procure a die which would make a nozzle that would be equally as effective as the sample nozzle. Defendants said in their agreement: “We agree to build a 12 cavity die to fabricate garden hose nozzles per sample for the sum of $1925.00.” It seems that one