Western Iron Works v. Smith

KOFORD, P. J.

Plaintiff instituted this action to recover $1150 for locker cars and other iron work alleged to have been sold and delivered to defendant for the Analy Union High School in Sebastopol, California. The complaint was in two counts of

indebitatus,

one for the reasonable value

[488]

and the other upon an open book account. Plaintiff recovered judgment for $250 without interest, being for a certain part of the iron work, but was denied judgment for the value of the locker cars. Plaintiff appeals from the judgment.

The main points on appeal are whether the locker cars were ordered and whether the defendant acted promptly enough in. rejecting them. Both questions are largely questions of fact and the appeal therefore presents chiefly the question of the sufficiency of the evidence to justify the findings and judgment of the court. The evidence discussed and printed in the appellant’s briefs would make it appear that the locker cars were ordered and that after delivery they were accepted and retained an unreasonable length of time before final and definite rejection. Respondent prints other evidence, however, to the contrary.

In 1926, respondent and appellant entered into a contract for the supply of steel and ironwork for the high school building. Some material (not involved in this action) was delivered. Then in April, 1926, respondent notified appellant that the bond election had failed and that the original plans for the high school building would not be carried out by the high school trustees. Respondent settled for materials already delivered and the contract was considered as ended.

Thereafter on July 16, 1926, respondent wrote appellant: “They are going to complete the gym here as per the original contract now, and I would like to know if there will be an advance over your original contract with me. I wish you would send all the pipe railing and fixtures for around the bleachers and balcony.” Appellant claims the expression in the letter “fixtures for around the bleachers and balcony” included and meant the locker cars. Respondent claims it did not. Appellant claims this letter was an order and made a new written contract. Respondent claims to the contrary.