Ice Bowl, Inc. v. Spalding Sales Corp.

KNIGHT, J.

The plaintiff and cross-defendant, Ice Bowl, Inc., appeals from a judgment in favor of the defendant and cross-complainant, Spalding Sales Corporation, in an action involving the purchase by appellant from the respondent of 593 pairs of ice skates and shoe combinations at an agreed price of $3.95 a pair. Appellant’s action was for damages for breach of warranty, and respondent’s cross-complaint was for the recovery of the purchase price of the property sold and delivered. The cause was tried before the court sitting without a jury, and the court found generally against appellant and in favor of respondent. Judgment was entered accordingly; and the grounds of appeal, as they are stated by appellant in its opening brief, are that the trial court erred in failing to find on the issue raised by

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paragraph III of the complaint, and that findings VI, VII, VIII and X are not supported by the evidence.

Resolving all conflicts in the testimony in favor of the prevailing party, the material facts may be stated as follows: In August, 1940, Roy Hann, representing appellant, called at respondent’s store in Sacramento which was being conducted by Lloyd Toomey, and told Toomey the Ice Bowl wanted to buy some skates for its rink in San Jose, within the price range of $3.95, which was the wholesale price of the cheapest skates carried by Spalding. He stated also that he wanted the soft-toe type. Toomey ordered samples from the San Francisco warehouse, and upon the arrival of the samples Hann looked them over and took away at least one sample, priced at $3.95, saying that “they were going to look them over.” The next day Hann returned, bringing with him a list showing the number and sizes of the skates the Ice Bowl already had on hand and the additional skates needed. At that time he told Toomey that they had decided on the soft-toe model priced at $3.95, for which Hann had previously expressed a preference. Toomey had recommended the hard-toe skate for rink use, and gave his reasons therefor, but rather than accept Toomey’s recommendation appellant selected the soft-toe skate, and ordered 593 pairs, at the price of $3.95 a pair, payments to be made as follows: one-half on December 1, 1940, one-quarter on January 1, 1941, and one-quarter on February 1, 1941. The skates were delivered to and accepted by appellant in San Jose, and were thereafter used for rental purposes; in fact in November, 1941, which was shortly prior to the trial of this action, the skates were still being used for rental purposes. However, appellant failed to make any of the payments falling due on December 1, 1940, January 1, and February 1, 1941; and late in February, 1941, respondent began to press appellant for payment. In response to these demands appellant promised that payments would be made in March and April, 1941. Meanwhile the counters in some of the skates began breaking down, and a Mr. Mabrey, another representative of the appellant company, called and inquired whether anyone in San Francisco could strengthen the counters, saying that appellant “was willing to pay any charge to reinforce the counters.” Respondent undertook to see what could be done, and it was subsequently found that the counters could be strengthened at a cost of 25 cents a pair to appellant; but appellant then decided not to have the work done. Up