Edgar v. Hitch

SHENK, J.

The defendant Hitch appeals from a judgment awarding the plaintiff $660 as the unpaid balance of the purchase price of hay he sold to the defendant.

On March 19, 1952, the defendant asked the price of a stack of hay which the plaintiff had offered for sale. The plaintiff testified that he specified “$42.50” per ton, while the defendant testified that the plaintiff named “$32.50.” One of.the plaintiff’s witnesses testified that before the defendant met the plaintiff he had been informed that the plaintiff was asking $42.50 for his hay. There is evidence that in March, 1952, the market price of hay of the quality that the plaintiff sold was $42.50 or more, as well as evidence that it was $32.50 or less.

In a subsequent telephone conversation in which price was not mentioned the defendant agreed to buy and the plaintiff agreed to sell the hay. On March 22, 1952, while the second loads.of hay were being stacked on trucks, the defendant gave the plaintiff a check for the first loads of hay at $32.50 per ton. The plaintiff then asserted that the agreed price was $42.50 per ton and an argument ensued. The plaintiff testified that he permitted the defendant to take the second loads of hay but stated to him that he was not “loading it for $32.50.” The defendant testified that the plaintiff agreed to let him take the second loads for $32.50 per ton. The defendant’s agent gave the plaintiff a second check computed at $32.50 per ton in payment for the second loads; on the second cheek was the notation “Pd. in full for all Hay Bought From John Edgar @ 32.50 Ton.” The plaintiff kept the two checks and on April 15, 1952, before the checks were cashed, the plaintiff’s attorney wrote the defendant that notwithstanding the notation on the second check there was an additional sum of $660 due the plaintiff on the transaction and that legal action would be taken if this sum was not paid within five days. On April 26, 1952, the plaintiff brought this action in the municipal court. The defendant filed a cross-complaint alleging damages in the

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sum of $5,000 and the cause was transferred to the superior court for trial. On May 24, 1952, the plaintiff cashed the checks pursuant to the advice of his attorney.

A jury was waived and the matter was tried and submitted. After the court filed a minute order for judgment for plaintiff but before the judgment was entered, the defendant was permitted by stipulation to file an amended answer setting up the defense of accord and satisfaction. The trial court subsequently made the following findings, among others: