Vickter v. Pan Pacific Sales Corp.

[602]

SHINN, P. J.

David Vickter and Hyman Viekter, doing business as Giant Penny Stores, recovered judgment against Pan Pacific Sales Corporation for $1,035. Of this amount $500 represented a deposit made by plaintiffs on account of merchandise purchased from defendant, and $535 damages for failure to deliver the goods. Defendant appeals.

The facts are set forth in a settled statement and in material respects are as follows: Plaintiffs ordered of defendant and defendant agreed to supply certain merchandise, consisting of Christmas decorations, for the sum of $2,675; plaintiffs made an advance payment of $500; the merchandise was to be shipped from Japan on October 31, 1948; dock workers were on strike at the harbors of San Pedro, Wilmington and Long Beach; on November 10th the merchandise was in transit, and anticipating that it could not be unloaded at the Los Angeles harbors it was agreed that it would be diverted to Seattle and transported to Los Angeles by motor truck; plaintiffs agreed to pay $200 toward the extra cost of delivery, and in consideration thereof defendant agreed that delivery would be made to plaintiffs’ business premises in Los Angeles not later than November 30, 1948; defendant was unable to make delivery but offered delivery when it received the merchandise, December 13, 1948; there was evidence that in the meantime plaintiffs had purchased identical merchandise at the lowest obtainable price in the Los Angeles area for $4,175. The settled statement reads “The damages were computed at $535.00, the difference between the contract price and the price paid by respondents on the open market. ’ ’ The findings state, “that plaintiffs’ damages in respect to monetary loss by reason of necessity to purchase similar Christmas merchandise in the open market was in the sum of $535.00 and no further sum by reason thereof.” In their complaint plaintiffs alleged their damage to be the sum of $535, and prayed for the recovery of that sum in addition to the amount paid on account.

David Viekter, one of the plaintiffs, testified that he paid various sums for identical merchandise in the total amount of $4,175, and that the prices paid were the lowest for which the merchandise was obtainable in the Los Angeles area. He gave the names of some parties from whom some of the merchandise was purchased, stated that he could not remember offhand where other purchases were made, that books and records of the business were kept under his direction, that they would show the complete transactions and