Simpson v. Malter

LANGDON, P. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action to recover for services in securing a purchaser for certain wines owned by the defendant under an alleged contract with the defendant whereby he was to receive as his remuneration for such services any amount in excess of thirty cents per gallon for which he should sell said wine. With relation to the contract between the plaintiff and the defendant, and its fulfillment, the court found: That the parties had entered into a contract the terms of which were as alleged by the plaintiff, and that thereafter, while said contract was in full force and effect, the plaintiff obtained a purchaser who was ready, able, and willing to purchase sixty thousand gallons of wine at a price of thirty-five cents per gallon and upon the terms contained in the contract between the plaintiff and defendant, and said plaintiff immediately notified said defendant thereof and of the name of said purchaser and brought said defendant and said purchaser together at the city of Fresno, and that the defendant thereupon agreed to make said sale and deliver said wine on said terms to said purchaser; that said purchaser agreed to accept said wine and to pay for the same in cash, but that said defendant, thereafter, and without any cause or reason, and without any fault on the part of the plaintiff, or upon the part of the purchaser, declined to consummate the sale and declined to make delivery.

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In accordance with the rule recognized by the appellant, we may not review the conflicting evidence on the question of the making of the contract, its terms, etc.; nor the finding that the defendant agreed with the purchaser for the sale of his wine in accordance with the terms of this contract made by said defendant with the plaintiff. For the same reason we may not review the evidence upon which is based the further finding of the court that the time which elapsed between the making of the agreement and the performance of the same by the plaintiff was not an unreason

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able time. The last finding is based upon logical deductions from numerous matters which appear in evidence, such as the conduct of the parties during the interval, the apparent understanding of the parties as evidenced by the negotiations when the purchaser was produced, etc. After a reading of the evidence, we think this finding also may not be disturbed by us.