San Francisco Milling Co. v. Frye & Co.

JAMISON, J.,

pro tem.

This is an action upon a contract for the sale by plaintiff to defendant of one thousand tons of foul seed. Judgment was rendered for plaintiff. Thereupon defendant moved for a new trial and same being denied it prosecutes this appeal.

Two contracts for foul seed were produced at the trial of this action. One of them was dated April 5, 1930. This sale was confirmed by a man named King, of the firm of

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King Grain Co.,, brokers, acting on behalf of appellant. The confirmation in substance was that Frye and Company confirmed the sale of one thousand tons of foul seed (seeds screened from barley, oats and wheat) at the price of $14 per ton of two thousand pounds, f. o. b. ship, San Francisco Bay points. All of the foul seed called for by this contract was delivered and accepted except fourteen tons which were later delivered and accepted.

The contract dated May 15, 1930, was executed by both respondent and appellant. It provided that respondent sell to appellant one thousand tons of foul seed at $13 a ton, f. o. b. dock, San Francisco, the sale being made in accordance with the rules and regulations of the San Francisco Grain Exchange. Under this contract one hundred eighty-two tons were delivered to appellant on June 20, 1930, and were accepted and paid for. There was an overpayment of $182 by appellant on this shipment. On June 23d another shipment of two hundred sixty-five tons of foul seed was made by respondent. Both of these shipments were delivered at the wharf in iSan Francisco, were forwarded by a carrier selected by appellant, and were inspected by agents of appellant at the wharf in Seattle. Following said inspection appellant caused the last-named shipment of two hundred sixty-five tons to be transported in cars on a switching order naming appellant as consignee. This last-named shipment was not unloaded by appellant at its warehouse in Seattle, but was abandoned in the yards, and respondent was notified of such abandonment. In the meantime respondent had presented a draft to appellant for the amount of said shipment, which appellant refused to honor. It was then agreed by appellant and respondent that the said two hundred sixty-five tons might be returned to the wharf at Seattle, unloaded and sold, without prejudice to the rights of either party. Thereafter the said two hundred sixty-five tons were sold for the sum of $1669.50 and after paying the freight charges, etc., the net sum of $465.64 was realized.