Ackerman v. A. Levy & J. Zentner Co.

COATS, J.,

pro tem.

This is an action for breach of warranty. The case was tried by the court without a jury and judgment was rendered in favor of plaintiff.

The plaintiff for many years resided at Gerber, a country town in Tehama County, and conducted a general store there. At the time of the transaction complained of, he had sold this store on contract to a Mr. Stillwell, but was about to retake the possession and operation thereof. On June 14, 1929, Byron D. Bryan called at the store and inquired for Henderson bush baby lima beans for planting. Stillwell did not have a sufficient quantity on hand, and plaintiff undertook to secure the beans. He telephoned to the defendant A. Levy & J. Zentner Co., a corporation, at their office in Chico, California, and ordered the beans, 13 sacks in all, explaining that they.were for seed planting. The beans were delivered to the store and charged to, and paid for, by plaintiff. Although not known to plaintiff at the time, David Jones was a partner of Bryan. Jones and Bryan planted the beans on land near Elder Creek and within several miles of Gerber. In the month of July, 1929, J ones noticed that the vines were runners and not of the bush variety and apparently then determined they were not true to name. They were inspected in August or early September, 1929, by the county agricultural agent and also by the county horticultural commissioner. The vines were not of the variety ordered and the crop produced was not merchantable. The beans were not harvested but the crop, such as it was, reached its maturity not later than October or November of the year 1929. Bryan and Jones on March 8, 1930, brought suit against Levy & Zentner for breach of warranty. This case was tried February 16, 1931. Plaintiff testified in this action and was served with a subpoena a few days before the trial thereof. The judgment in this first case was in favor of the. defendants herein and thereafter Bryan and Jones brought an action against this plaintiff in which action they recovered a judgment of $2,050 and costs amounting to $35.30.

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This judgment was entered on February 18, 1932. Thereafter on June 1, 1932, plaintiff brought this present action in which he received judgment for the sum of $2,085.30.

No error was committed by the court in the admission of the evidence of -the witnesses Lewis and Smith, nor in the admission into evidence of the judgment roll in the action of Bryan and Jones against Ackermán. Manifestly plaintiff’s damage could not be greater than the amount which he was compelled to pay to Bryan and Jones, and the judgment roll was admissible for this purpose. The evidence also sustains the finding of the court that the sale was made by defendant to plaintiff and not to Stillwell.