Garetto v. Almaden Vineyards

DOOLING, J.

Plaintiff appeals from a judgment in his favor for $3,081.34, the amount deposited by defendants in court. The action was for the price of wine allegedly sold to

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defendants at an agreed contract price of $21,550. The defendants pleaded and the trial court found that the wine was warranted to conform to sample, that the wine actually delivered did not conform to the sample but was a different and inferior quality of wine and that it was not accepted by the defendants. The wine was sold by defendants for plaintiff’s account after plaintiff had refused defendants’ repeated demands to take the wine back and the amount of the judgment represents the difference with interest thereon between the amount received by defendants from this sale of the wine and the sum of their handling costs and an amount already paid by them to plaintiff.

The finding that the wine delivered did not conform to sample is not attacked on appeal and is amply supported by the evidence. The sole argument made on appeal is that “defendants lost their right to rescind the sale by their unreasonable delay and retention of the wine.”

For the sake of clarity we note at this point that the case under the pleadings and finding of the court is not properly speaking one of rescission but of refusal to accept delivery because the goods tendered were not those agreed to be sold. The true question is not therefore whether defendants lost or waived the right to rescind by unreasonable delay but whether they must be held to have accepted the wine under that portion of section 1768, Civil Code (Uniform Sales Act, §48) which provides: “The buyer is deemed to have accepted the goods . . . when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”

■ The distinction is pointed out in 3 Williston on Sales, Revised Edition, section 483, page 36 : “The question whether a buyer has elected to affirm a sale and retain the goods that he has bought, in spite of the seller’s fraud, and the question whether a buyer has elected to forego a right of rescission for breach of warranty involve problems similar but not precisely identical with those presented by the question whether a buyer has accepted goods tendered to him. ’ ’