Scott, Magner & Miller v. Mozzetti

STURTEVANT, J.

The plaintiff commenced an action to recover a judgment for merchandise sold and delivered. Judgment went for the plaintiff and the defendant has appealed. The plaintiff was, prior to July 1, 1920, engaged in the business of dealing in stock feed at wholesale. The defendant was a dairyman and purchased large quantities of hay of the plaintiff. In some years the purchases ran as high as $40,000. During the season of 1920 the plaintiff commenced to close up its affairs and go out of business. A difference having arisen between the plaintiff and the defendant, the plaintiff commenced its action by filing a complaint, the charging part of which is, “That the said defendant Ben Mozzetti is indebted to the plaintiff above named in the sum of nineteen hundred twenty-five and 50/100 dollars ($1,925.50) for goods, wares and merchandise sold and delivered by plaintiff to defendant at the special instance and request of said defendant, at the said city and county of San Francisco, state of California, together with the interest accrued on said sale, and for which the said defendant promised and agreed to pay to said plaintiff at said city and county of San Francisco, state

[510]

aforesaid, said sum of nineteen hundred twenty-five and 50/100 dollars ($1,925.50).” Later the plaintiff filed an amended complaint which is identical with the original complaint except that it claims $2,940.16 instead of $1,925.50. Thereafter the defendant filed an answer which denied the material allegations of the plaintiff’s complaint and contained an allegation as follows: ‘1 That on or about the 19th day of May, 1920, said defendant agreed with said plaintiff to purchase a certain boatload of first-class, first-cut alfalfa hay and to pay therefor the sum of $32.00 per ton; that delivery was made by said plaintiff of alfalfa hay from what was known as the Enos Ranch; that delivery was made to the said defendant of a certain lot of hay which was not first-class and first-cut alfalfa hay from said Enos Ranch; that said defendant objected to the said delivery and refused to accept the said boatload of hay and that following such refusal said plaintiff agreed with said defendant that upon the acceptance of said hay by said defendant that said defendant should pay what was the reasonable value of the said hay; that said defendant agreed so to do; that the reasonable value of the said hay was $15.00 per ton and said defendant has offered and is now and has always been willing to pay for such hay at the rate of $15.00 per ton; that said plaintiff has refused to accept such payment.” On the issues so made the parties went to trial. The plaintiff took up the burden of proof and called five witnesses to the stand. It called Mr. Hyde, the plaintiff’s bookkeeper, and by him elicited the proof that the books showed a balance of account in the sum of $2,-940.16. By Mr. Miller, the plaintiff’s manager, the plaintiff proved that on the nineteenth day of May, 1920, Mr. T. J. Code, acting for the plaintiff, entered into a contract with the defendant as follows: