Silva-Bergtholdt Co. v. J. H. Flickinger Co.

FINCH, P. J.

The defendant has appealed from the judgment of the trial court herein in favor of the plaintiff.

The complaint alleges that the plaintiff sold the pears growing upon its lands in the year 1923 to the defendant at the agreed price of twenty-five per cent “over season’s opening price of the Pear Growers Association”; that “the Pear Growers Association’s opening price for the season of 1923 was $50 per ton for said pears, plus $2.50 a ton service charge”; and that plaintiff delivered to defendant sixty-five and a half tons of pears; that the total purchase price of such pears was the sum of $4,263.68, of which only $3,174.61 had been paid. The prayer is for judgment in the sum of $1,089.07.

The answer admits the contract and the opening price of $50 a ton, but denies that the service charge of $2.50 a ton fixed by the association is applicable to the contract of the parties to this action, and alleges that only 129,206 pounds of pears were delivered; that, of such quantity, 20,460 pounds “were wormy, or otherwise defective, were not according to contract, were not fit for use, and could not be, and were not used, by defendant”; that “defendant incurred expense, by way of freight and labor upon said defective pears ... in the sum of” $248.72; that defendant deducted from the purchase price of the pears the sum of $36.99 for the rental of fruit-boxes to the plaintiff; and that the defendant has overpaid plaintiff

[668]

#100.76. Defendant filed a cross-complaint for the recovery from plaintiff of the said sum of $100.76.

The court found that “the Pear Growers Association’s opening price for the season of 1923 was $50 per ton for said pears, plus $2.50 a ton service charge”; that plaintiff delivered to defendant sixty-five and a half tons of pears; that the total purchase price thereof was $4,257.50; that the pears, upon their arrival at defendant’s cannery, were by defendant “inspected, examined, accepted and weighed”; that “the presence of worms in said pears and the wormy condition of the same, could, at the time of the delivery of the same and at the time when they were examined and accepted by defendant, have been detected and discovered by an inspection and examination of said pears”; that at the time of such delivery three and a half tons of the pears were “wormy and unfit for canning purposes” and that the defendant is entitled to credit therefor at the purchase price thereof; that the remainder of the pears were “in accordance with the terms of the contract”; that the defendant paid out freight on the wormy pears in the sum of $17.09 and is entitled to credit for that sum; that it paid out for labor upon the wormy pears the sum of #77.21, but is not entitled to credit therefor; and that it is entitled to -credit for $36.99 for rental of lug-boxes. Judgment was entered in favor of the plaintiff for $801.31.