Hammond v. San Mateo Planing Mill Co.

RICHARDS, J.

This is an appeal from a judgment in favor of defendant rendered and entered upon the verdict of a jury. The action was instituted by the plaintiffs to recover from the defendant the sum of $4,296.38 as the purchase price of a cargo of lumber claimed to have been sold and delivered by the plaintiffs to the defendant on or about the twenty-fifth day of May, 1914. The contract under which said lumber was sold was in the form of a written memorandum of such sale, specifying the amount, quality, price, and place of delivery of said lumber, which was to be shipped from San Francisco and delivered on the levee at San Mateo. The contract contained this clause: ‘1 San Francisco tally & inspection by Pacific Coast Lumber Surveyors to govern & be final.” The complaint was in the form of the common counts for goods, wares, and merchandise

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sold and delivered. The answer of the defendant, after denying the allegations of the complaint, set up the contract in writing between the parties and included the same in its answer in the form of an exhibit. The answer then proceeded to state that an alleged tally and inspection of the lumber attempted to be delivered to the defendant under the terms of said contract was made and had at San Francisco, but that the same was conducted by persons unknown to the defendant, and was, in fact, no tally or inspection at all because so unskillfully, carelessly, negligently, and speedily conducted as to render it impossible for the same to be a true or sufficient tally and inspection of said lumber, and that as a matter of fact the lumber so purporting to be inspected did not comply either in the amount of feet or amount of pieces or in its quality with the requirements of said contract, and that the attempted delivery of such lumber did not constitute a performance on the part of the plaintiffs of their said contract, but, on the contrary, constituted a breach thereof, from the effect of which the defendant suffered damage in the sum of three thousand dollars, for which it prayed judgment in its favor. The defendant subsequently filed an amendment to its said answer wherein it was alleged as a separate defense, and also by way of cross-complaint, that the written contract between the parties did not set forth the true agreement between them in the particular respect that at the time said contract was prepared it was understood and agreed that the persons to be selected as the tallymen and inspectors of said lumber by virtue of the concluding clause in said writing were to be appointed by one Walter Anderson, the authorized representative of the defendant. At the trial of the cause a second amendment to the defendant’s answer and cross-complaint was presented and permitted by the court to be filed, wherein it was averred that the understanding and agreement between the parties by which the tallymen and inspectors of said lumber were to be appointed by said Walter Anderson was omitted from said written contract by the mutual mistake of the parties.