Sulmock Furniture Manufacturing Co. v. Spitz

ATTERIDGE, J.,

pro tem.

Appellant, as plaintiff in the court below, sought by its action to recover the agreed purchase price of 200 radio cabinets which it had manufactured to the order of defendants. The terms of sale were for cash on delivery—otherwise stated, title was not to pass until the purchase price was paid. This is apparent both from the allegations of plaintiff’s complaint and its own conduct with respect to the goods as well. After a small number of the cabinets had been delivered, it expressly refrained from making further deliveries of the remaining balance of the order because payment therefor was not forthcoming, and filed this action for the agreed purchase price, which was $5,400, less a cash payment on account of $740.

During the pendency of the action, and while the remaining goods were in the possession of plaintiff, the same were totally destroyed by fire, and plaintiff received from various insurance concerns the sum of $3,400 in reimbursement of its loss as aforesaid. In its findings and judgment the trial court applied as determinative of the appropriate measure of damages, subdivision 2 of section 3311 of the Civil Code (as it existed prior to the recent adoption of the “Uniform Sales Act”, Stats. 1931, p. 2234 et seq.) to wit: “the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller . . . ”, and awarded judgment for plaintiff in the sum of $1260, which is the difference between the purchase price less the cash payment and the sum received by plaintiff from the insurance carriers.

Appellant contends that since the money it received from its insurance carriers was derived as the fruits of its separate contract with the said carriers, respondent had no legal or beneficial interest therein. As a matter of law this contention may be conceded, but the correctness of the trial court’s finding is in no way thereby impaired. For as previously pointed out title to the goods had not passed, and in such a case the measure of damage adopted by the court was the only one open to it. Because, as declared

[172]

in

Gopcevic

v.