Cassriel v. McIntyre

NOURSE, J.

is an appeal from a judgment in favor of plaintiff awarding him damages for breach of an agreement dated October 15, 1918, to sell personal property. The agreement, which was in writing, read as follows: “Beceived of E. A. Webb, the sum of $50.00, as first payment on the purchase price of all fixtures, furnishings, safe, show cases, stationery, merchandise and other articles in or belonging to the Coalinga Jewelry store, as owned and oper

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ated by me at 237 N. 5th Street, Coalinga, California. I agree to sell to the said E. A. Webb, or Ms assigns the fixtures consisting of 1 safe, 1 cash register, counter, 8 show cases, 1 Fountain pen case, 2 show windows, a small silver show ease, 2 oak wall cases, 2 pine wall cases, 3 tables, scales, &c for the consideration of $1000.00 to be paid with and in conjunction with the balance of the purchase price as stated below: I agree to sell Mm or assigns, all the stock of merchandise, consisting of stationery, stationer’s supplies, jewelry and all other stock in said business &c. at its invoice cost price, less a discount of 15% from said invoice price, upon the following terms, to wit: The above sum of $50.00 as credited on all the purchase- price herein, the receipt of which is hereby acknowledged, the further sum of $950.00 upon completion of and footing of said invoice cost and the balance of purchase price within 48 hours after delivery of bill of sale to the First National Bank of Coalinga, Coalinga, Califorma, for said purchaser or Ms assigns, it being agreed that the usual and legal notice of intended sale shall have been given and that all claims against said business shall have been paid and satisfied so that no obligations shall remain against said business, the said bank being authorized to withhold sufficient of said funds to pay all presented claims, until same are satisfied. It is also agreed that said sale shall include the good will of said business as well as all right to the use and occupation of the premises at 237 N. 5th Street under lease from A. P. May.” The sign “&c. ” following the word “scales” was lined out by the parties executing the contract and initialed by them in the margin thereof at the time of its execution for the purpose of eliminating from the sale any articles other than those expressly enumerated.

On October 24, 1918, Webb assigned his interest in the agreement to Cassriel, the plaintiff in this action. Webb and an employee of defendant prepared an invoice of the stock of merchandise, which showed a cost price of $5,133.15. At the time of the taking of the invoice defendant’s employee presented to Webb a supplemental invoice of fixtures and furnishings located within the store and not enumerated in the list of fixtures agreed to be sold for one thousand dollars, the value of which was $407.50. Webb refused to indorse such invoice, claiming at the time that he had purchased all the articles listed therein for one thousand