Duff v. Anderson

California Court of Appeal Dec 15, 1920 No. Civ. No. 3601.Published

Before: Wood

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Holding. The court affirmed the judgment awarding the seller possession of cattle due to the buyer's default on payments, while modifying the judgment to remove an unauthorized award regarding the increase of the cattle.

Issues

Whether the evidence supported the trial court's finding that the seller made a valid tender of the bill of sale.
Whether the buyer waived objections to the sufficiency of the bill of sale by failing to specify them at the time of tender.
Whether the duty to perform the tubercular test rested with the buyer.
Whether a subsequent written offer of credit for dead or diseased cattle was enforceable without consideration.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“The court found upon sufficient evidence that there was an actual tender of the bill of sale, and under section 2076 of the Code of Civil Procedure it devolved upon appellant at such time to specify any objection he had”

“The court found upon sufficient evidence that there was no consideration for the instrument; that it was made at a time when all the payments on the contract were due, and as an offer of compromise.”

Synopsis

- APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. Affirmed.

The facts are stated in the opinion of the court.

WOOD, P. J.,

pro

tem.

This is an ordinary action of replevin by which plaintiff obtained judgment for the possession of certain cattle theretofore delivered to defendant under an agreement of purchase and sale. Defendant appeals.

1 By the terms of an agreement which bears date April 3, 1918, respondent agreed to sell, and appellant to buy, thirty-five dairy cows for $4,375. Upon the execution of the agreement $1,000 was paid. The balance, with interest at eight per cent per annum, was payable within one year in any event, and installment payments were to be made on account in the sum of $150 per month on the fifteenth day of each and every month, commencing May 15, 1918, title to remain in seller until the purchase price was fully paid. The purchaser was given possession of the cattle upon the execution of the agreement, and was to receive a bill of sale upon full payment of the contract price.

The following covenant was inserted in the agreement: “The said stock and all thereof shall be held for six months from the date hereof and subject to what is commonly called Tubercular Test made in conformity to the laws of said State. All cows passing such test shall be accepted by the second party at that time. If any of said cows do not pass such test at such time, the same shall be held for an additional period of six months and a like test shall be made of them during that time, and all thereof which pass

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said test shall be accepted by the second party. At the end of one year from the date hereof if any of said cows fail to pass said test, then and in that event, the first party will withdraw the same from this contract and agreement and deduct $125 for each cow from the said purchase price, but the second party shall pay the first party $6.00 per month for each and every month of the milking period from the date hereof up to the time any animal is withdrawn by the first party for the reason that it does not pass said test. ’ ’

During the six months following the execution of' the agreement appellant made payments on account aggregating $765.17, but never made any thereafter.

On May 10th, and after the entire balance of the purchase price, with interest, amounting to $2,897.53, was due and unpaid, respondent delivered to appellant a written demand as follows:

Duff v. Anderson

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Synopsis

WOOD, P. J.,

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