Smith v. Norman I. Fadel, Inc.

AGEE, J.

The complaint is in two counts, the first being a common count for “goods sold and delivered” in the amount of $655.20, and the second being for damages in the sum of $755 for breach of contract. The prayer is for $1,410.20. Plaintiff recovered a judgment in the amount of $755 and defendant appeals therefrom.

Although defendant states in his brief that the court “found for plaintiff on the first cause of action,” this would appear to be in error. The two counts are not treated separately in the findings but the following finding would seem to make it clear that the recovery is based upon the second count: “By reason of the said agreement and its said cancellation, there is due from Defendant Norman I. Fadel, Inc. to Plaintiff Frank M. Smith, damages in the sum of $755.00.” The only finding that could be said to refer to the first count is the general one that “each and every allegation in the complaint of Plaintiff Frank M.' Smith is true. ’ ’ The sufficiency of the findings is not .questioned by defendant.

The sole issue on appeal is whether it was error for the trial court to disallow certain evidence offered by defendant as a counterclaim when only a general denial was pleaded in its answer as to each count of plaintiff’s complaint.

In January 1957 plaintiff and defendant entered into an agreement for the seeding and fertilizing of a certain area of land along a strip adjacent to a highway being constructed by defendant • and also for the delivery of certain, straw tó", be used in erosion control. The agreement specified the prices to be paid. The total amount involved- was approximately $10,-

[15]

000. Defendant paid for the straw in advance, and it was delivered in June and July 1957.

On September 17, 1957, defendant wrote to plaintiff, requesting a cancellation of the seed and fertilizer portion of the agreement. The letter stated that, if plaintiff had already obtained the material, defendant would take it “off of your hands,” adding that “you are entitled to some benefit for your efforts in securing the material and we will make some adjustment to cover this. ’ ’

Plaintiff testified as follows: “I then got in touch with Mr. Fadel [defendant’s officer in charge] and wrote him a letter to the effect that inasmuch as the seed had to be ordered early and had to be ordered by me and was purchased and I had already had to pay for it, that I could not cancel the seed, but inasmuch as the fertilizer could be canceled, I would be glad to co-operate with him and do so, which he was very appreciative of and notified me that he would be glad to reimburse me for any extra trouble that I had been caused. So then when I notified him that I couldn’t cancel the seed he had the seed delivered to his warehouse here in Eureka and, of course, since then he has never paid for it.”