Purexo Products Co. v. Sasate Yamate

STURTEVANT, J.

The plaintiff sued the defendant to recover a balance due for goods sold and delivered. The defendant appeared and answered, and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff. From a judgment entered on the verdict the defendant has appealed.

Before proceeding further it will clarify the situation to state that the subject matter of the alleged sale consisted of a number of cases of wine tonic containing alcohol. Both in the trial court and in this court something has been said regarding the contract being illegal. That issue was presented by the defendant. On him rested the burden of proof. On the subject of legality or illegality the evidence was distinctly conflicting. In support of the judgment we must assume that the jury found against the defendant on that issue.

The defendant contends that his motion for a non-suit should have been granted; that the trial court erred in giving to the plaintiff as damages the contract price, and that there is no evidence as to the amount of the damage suffered by the plaintiff. These three contentions the defendant presents as one point, the contention that the plaintiff should have sued for damages instead of for the balance of the contract price. In making this point the defendant is relying principally upon the rule as stated in

Gopcevic

v.

California Packing Corp.,

64 Cal. App. 132 [220 Pac. 1078], He concedes that, as stated in the case cited, “If tender is made by the vendor with intent to pass title in the goods to the vendee, title is thereby deemed to have passed and the vendor may sue for the contract price.” (Civ. Code, sec. 1141.) In

Turner, Kuhn & Fraser, Inc.,

v.

Jones,

61

[67]

Cal. App. 732, at page 734 [215 Pac. 1033, 1034], the court said: “Under a contract of sale the parties may agree when title shall pass. If they expressly do so, their contract controls, even though the subject matter has only a potential existence. If they do not so previously agree and a dispute arises as to the true character of the agreement, the question is one rather of fact than of law.” We do not understand the defendant to question the rule as so stated, but we do understand him to contend that under the facts in the instant case the title did not pass. Whether it did or not can be determined only from a number of circumstances which were introduced in evidence. The purchaser maintains an office where he transacts business, but there are not at that office storerooms for the purpose of holding his merchandise. The written order out of which this litigation arose contained the language: “This confirms my order for 200 cases of Vin Zymo Tonic at $5 per case. Same to be delivered on or before January 10, 1927.