Louis Weinberg Associates, Inc. v. Newman

[334]

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover for the value of merchandise purchased from plaintiff by defendant, defendant appeals.

Viewing the evidence as we must in the light most favorable to plaintiff (respondent) pursuant to the rules set forth in

Estate of Isenberg,

63 Cal.App.2d 214, 216 [2] [146 P.2d 424], the record discloses that defendant, whose place of business was in Los Angeles, visited plaintiff in the city of New York for the purpose of purchasing merchandise; that plaintiff showed him certain samples of milan straw imported from

Italy;

that thereupon defendant ordered from plaintiff five cases of such straw which was thereafter, pursuant to defendant’s instructions, shipped by plaintiff to the Monte Christi Corporation at Rahway, New Jersey, who were dyers of straw.

On July 20, 1948, such shipment was made and an invoice designating the five cases and indicating that they contained 1,881 pieces, was sent by plaintiff to defendant. The merchandise was received on July 20, 1948, by the Monte Christi Corporation, which forwarded to defendant an invoice indicating the number of cases received, and also that there were an aggregate of 1,881 pieces contained in them.

It was the business practice in the industry, when purchasing by the case, to purchase the number of pieces or skeins in a case. The merchandise was sold to defendant by plaintiff to be billed as of December 4, 1948. Although defendant at no time visually observed any of the merchandise, he wrote a letter to plaintiff cancelling his order on the ground that the samples did not conform with the warranty of samples shown him. Upon receipt of the letter plaintiff showed it to the officials of the Monte Christi Corporation. The merchandise was examined and found not to be defective, which information was conveyed to defendant who still refused to accept it.

Subsequently plaintiff instituted the present action to recover the sum of $3,197.70, the contract price of the merchandise. After instituting the action the merchandise was sold by plaintiff at the best available price, for the sum of $1,222.65.