Goldberg v. Southwestern Metals Corp.

DORAN, J.

The action herein arose out of a contract of sale whereunder appellant corporation located in Los Angeles undertook to sell and deliver to respondents whose plant was

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in Denver, one carload of 280 aluminum sheets. The aluminum was shipped with order bill of lading consigned to appellant with arrival draft attached. Respondents, upon notification by the railway company, paid the arrival draft in the sum of $14,577.35, together with a freight bill of $707.92. Upon inspection of the shipment it was found that the aluminum sheets were damaged and not fit for respondents’ use whereupon respondents declined to accept the shipment. Appellant refused to return the money paid, and the present action resulted. The trial court found that the damage was caused by appellant’s negligent loading of the car and gave judgment for the respondents.

The record discloses that on October 8, 1946, the plaintiff Lee Elder, partner with the plaintiff Harry Goldberg, telephoned from Denver to the Southwestern Metals Corporation in Los Angeles, and placed the order in question with a Mr. Shonberg, appellant’s sales manager. The order was later confirmed by a letter from Mr. Elder, containing a description of the aluminum ordered and stating: “Please let us know when we may expect shipment and whether you are sending it with a sight draft or some other method. Please send the draft through the Central Bank & Trust Company if this method is used.”

There is evidence that no method of shipment was specified by the buyers; that the price was f.o.b. appellant’s warehouse in Los Angeles; that the appellant seller selected the Progressive Transportation Company to do the hauling and loading of the aluminum, and that the car was sealed by the transportation company. The trial court’s finding that appellant was negligent in.not properly blocking and bracing the carload of aluminum resulting in the damage complained of, finds support in the evidence.

It is the appellant’s contention that “Title to or property in the goods passed under the facts in issue regardless of whether or not the goods w.ere properly loaded by the intermediary carrier”; that title passed before delivery at Denver; and that the appellate court “is not bound by the determination of the passing of title by the trial court if there are no facts or evidence in the record to support such a finding. ’ ’