Samuels v. L. A. Mattress Co.

BARTLETT, J. pro tem.

The plaintiff, a cotton broker, brought this action against A. V. Hamilton, doing business under the firm name and style of Los Angeles Mattress and Renovating Company, for damages for the breach of an oral contract to purchase 50 bales of cotton linters at a price of 1714 cents per linter of which 5 bales were delivered. The court rendered judgment in favor of the plaintiff, the respondent here, for $2,041.81 from which the defendant has appealed.

Appellant contends that there was no contract to buy and sell cotton in this case and attacks the finding of the court that there was, as not being sustained by the evidence. There was a decided conflict in the testimony but there is substantial evidence to support the court’s finding. In his argument on the matter appellant calls attention to the fact that the day following the conversation respondent sent to appellant confirmation of the conversation had with him, in duplicate, signed by the respondent which had printed on it “Please sign pink copy and return at once” but that appellant neither signed it nor returnéd it. Respondent testified that it was his intention to have Hamiltoji sign the paper and return it. Appellant says in his brief: “From this testimony it is conclusive that

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Samuels did not consider himself bound to any agreement whatsoever unless Hamilton complied with his request.” Inasmuch as the terms of the contract had been definitely agreed upon orally the day before and Samuels testified to his many subsequent efforts to comply with the contract and that thereafter appellant again confirmed it, the court was bound to draw no such inference. It is our duty where there is substantial evidence to support the finding, not only to resolve all conflicts in favor of the finding, but to indulge in all legitimate inferences which may support it.

(Estate of Bristol,

23 Cal.2d 221 [143 P.2d 689].)

Appellant’s next contention is that the contract is invalid under the provisions of subdivision 1 of section 1724 of the Civil Code which provides that the sale of goods of the value of $500 or more shall not be enforceable unless the buyer shall accept part of the goods so contracted to be sold and actually receive the same. The court found: “ [t]hat it is true that on or about July 28, 1947, defendant took delivery of 5 bales of cotton linters and paid therefor the sum of $462.30, said 5 bales weighing approximately 2,680 pounds.” The court further found: ” [t] hat said delivery of said 5 bales of cotton linters was made and taken as part performance of said contract for the purchase of said 50 bales of Gotten linters. ’ ’ These findings showed a clear compliance with the provisions of the code section just quoted and were supported by a preponderance of the evidence.