49 Cal. App. 2d 376 | Cal. Ct. App. | 1942
P1aintiff recovered judgment against def en. dant for the alleged purchase price of two presses. Defendant appeals from said judgment.
Defendant presents numerous contentions on this appeal hut the determinative question under the unusual situation presented by the record is whether there was any valid written contract between the plaintiff and defendant for the purchase of said presses.
Plaintiff was engaged in the manufacture and sale of machinery under the fictitious name of Process Machinery Company. Defendant was a corporation engaged in fish canning at Monterey. The president of the defendant corporation, hereinafter called the Hovden Company, was K. Hovden,
In April, 1936, plaintiff entered into a written contract with the Mazama Company, by which it agreed to sell and deliver to said corporation four “presses” and one “disintegrator.” The entire purchase price was $13,650, which was payable $3,412.50 upon the execution of the agreement, and the balance in equal monthly installments commencing on July 15, 1936, and ending on October 15, 1936. Delivery was to be made on or before May 22, 1936.
The above mentioned machinery wa,s ordered for installation on the “Mazama” and said machinery was to be shipped to the Commercial Boiler Works in Seattle for that purpose. In May, 1936, it developed that plaintiff would be unable to make delivery of said equipment by May 22nd as provided in the written agreement. The northern fishing season was to open shortly and the Mazama Company arranged with the Hovden Company to obtain from the Hovden Company two presses which the Hovden Company had acquired a short time before. In return, the Mazama Company agreed with the Hovden Company to cause two of the four presses covered by its written contract with plaintiff to be delivered by plaintiff to the Hovden Company as soon as said presses were completed. This arrangement appears to have been agreeable to all concerned.
Pursuant to this arrangement the Hovden Company shipped its two presses from its plant at Monterey to Seattle for installation on the “Mazama” and the Mazama Company instructed plaintiff to deliver to the Hovden Company at plaintiff’s plant in Oakland two of the four new presses covered by the written contract between plaintiff and the Mazama Company. Two new presses were thereafter shipped by plaintiff to Seattle and the two remaining new presses were delivered by plaintiff on June 15, 1936, to the Hovden Company at plaintiff’s plant in Oakland. These last mentioned new presses were installed in the Hovden Company’s Monterey plant in place of the two presses which it had removed and sent to Seattle for installation on the “Mazama.”
The Mazama Company made the initial payment upon the
This action was brought upon the theory that a valid written contract for the purchase of said two presses was entered into between plaintiff and the Hovden Company in June, 1936. The claim that such contract existed was based solely upon two letters, one written by an employee of plaintiff on June 1, 1936, and one written in reply thereto by an employee of the Hovden Company on June 3, 1936. After the above mentioned arrangement for the exchange of two presses had been made between the Mazama Company and the Hovden Company, plaintiff instructed his employee Harris that he “should ship two of these to the Commercial Boiler Works and that the Hovden Food Products would call with a truck for the other two, and they would go to Monterey. ’ ’
The first of the two letters above mentioned was written by Harris, plaintiff’s employee, on June 1, 1936, and read in part as follows: “On June 12th we will bill four presses to the Commercial Boiler Works, Seattle, shipping two of them to Seattle and holding two for your truck to take to Monterey. If this is not as you understand it, please notify the writer, otherwise we will deliver according to this schedule.”
To this letter, Wood, an employee of the Hovden Company, sent a reply under date of June 3rd, which read in part as follows: “We note that there appears to be some confusion in the matter of the four presses. ... In regard to the second paragraph of your letter, you will bill two presses only to the Mazama Fisheries Corporation, care Commercial Boiler Works, Seattle, Washington, and bill ourselves at Monterey
The position of plaintiff in this case is based entirely upon the use of the word “bill” in these letters and particularly in the last mentioned letter written by the employee of the Hovden Company. Plaintiff apparently takes the position that the word “bill” has a plain and unambiguous meaning and that said last mentioned letter constituted a written authorization to plaintiff to charge the two presses to the Hovden Company upon delivery of said presses. Defendant takes the position that the word “bill” has more than one accepted meaning; that it is frequently used with respect to delivery or shipping instructions (Illinois Fuel Co. v. Mobile & Ohio Ry. Co., 319 Mo. 899 [8 S. W. (2d) 834]), and that it clearly appears from said correspondence that the parties were not discussing charges or payment but were merely discussing delivery or shipping instructions. In this connection, it may be stated that on cross-examination, plaintiff was questioned concerning said correspondence and the „use of the word “bill” by his employee Harris in the letter of June 1st. He testified, “That was Mr. Harris’ letter there and that is his wording. I had no control over that. He has quite obviously slipped in his verbiage. He used the wrong words.” Harris testified that he had nothing to do with charging for the presses and that “All I was instructed to do was where to ship them and I sent the bill of lading for the last two presses to Hovden and I shot two of them up north with a bill of lading. ”
The trial court sustained objections to a direct question relating to the sense in which the word “bill” was used in said correspondence, saying “. . . the letter is the best evidence, and it is a simple word that the court can understand. ’' There was other evidence, however, tending to show the sense in which said word was used. It appeared that no bill or statement was ever sent to the Hovden Company for said two presses; that the books of the plaintiff showed the purchase price of all the equipment to be a charge against the Mazama Company only; that the books of the Mazama Company showed the entire obligation to be owing by it to plaintiff; that plaintiff had assigned for collection his claim for the entire unpaid balance under his written agreement with the
The trial court did not find specifically that any written contract had been entered into by plaintiff and the Hovden Company, but did find certain facts in the nature of probative facts with respect to said correspondence. Furthermore, there were no findings on the issue of the bar of the statute of limitations. The trial court entered judgment against the Hovden Company for an amount equal to the full price of the two presses based upon the price per press which had been agreed upon at the time of the making of the written contract between plaintiff and the Mazama Company.
We believe that it is apparent from what has been said that this litigation was the result of an afterthought which developed when it appeared that plaintiff had suffered a loss by reason of the bankruptcy of the Mazama Company. The result of the judgment is to place upon the Hovden Company the obligation for the full price of the two presses which it had accepted, by agreement with the Mazama Company, in exchange for its two presses which it had delivered to the Mazama Company. Said exchange was made as a matter of accommodation to the Mazama Company and was necessitated by plaintiff’s failure to deliver the four presses within the time required in his written agreement with the Mazama Company. Immediately after making said exchange in 1936, plaintiff’s employee wrote to the Hovden Company on behalf
Regardless of the sense in which said employees may have intended to use the word “bill” at any place in said correspondence, we are of the opinion that there was no valid written contract between plaintiff and the Hovden Company. There was nothing in said correspondence or in any other evidence in the record to show that the written agreement between plaintiff and the Mazama Company was ever amended or modified so as to release the Mazama Company from its obligation to pay for all four presses but, on the contrary, the uneontradicted evidence showed that said contract was intended to remain and did remain at all times in full force and effect. There was therefore no valid novation (Civil Code, sec. 1531; United States Gypsum Co. v. Snyder-Ashe Co., 139 Cal. App. 731 [34 Pac. (2d) 767]; Blumer v. Madden, 128 Cal. App. 22 [16 Pac. (2d) 319] ; Anglo-Calif. Trust Co. v. Wallace, 58 Cal. App. 625 [209 Pac. 78]; American Paper Bag Co. v. Van Nortwick, 52 Fed. 752 [3 C. C. A. 274]; Williston on Contracts (Rev. Ed.), see. 1869, page 5253), and there was no consideration for any alleged promise on the part of the Hovden Company to pay for said presses as plaintiff was already under a legal obligation to make delivery of said presses at the direction of the Mazama .Company and the Mazama Company was already under the legal obligation to pay plaintiff for the same. (Tipton v. Tipton, 133 Cal. App. 500 [24 Pac. (2d) 525]; Ellison v. Jackson Water Co., 12 Cal. 542; Parrino v. Rallis, 116 Cal. App. 364 [2 Pac. (2d) 515].)
We have thus far discussed this appeal solely from the standpoint of whether or not there was a valid written contract on the part of the Hovden Company to pay for said presses. Defendant also contends that there could be no implied contract under the circumstances. Plaintiff does not answer this contention but rests upon the claim that there was a valid written contract by reason of said correspondence. We therefore deem it unnecessary to discuss this last mentioned contention of defendant further than to state that in our opinion, said contention must be sustained.
The views which we have expressed necessitate a reversal
The judgment is reversed.
Nourse, P. J., and Sturtevant, J., concurred.
A petition for a rehearing was denied February 28, 1942, and respondent’s petition for a hearing by the Supreme Court was denied March 27, 1942.