San Francisco Commercial Agency v. Widemann

[210]

LENNON, P. J.

Plaintiff’s complaint in 'this action consists of two counts. The first count in effect alleges that plaintiff’s assignor entered into a contract with the defendant for the purchase and sale of certain livestock for the sum of $5,170.46, which was to be paid upon the delivery of the cattle; that $500 thereof was deposited with the defendant as payment in part; that the sum so paid was to be returned to plaintiff’s assignor if defendant failed to deliver the cattle as per the terms and conditions of the contract; that the cattle contracted for were subsequently delivered and accepted as agreed, and that, in addition to the $500 previously paid on account, the full purchase price was paid to the defendant ; that although demand had been made upon the defendant for the said $500, he had failed and refused to return the same.

The second count of plaintiff’s complaint stated a cause of action in the nature of a claim for moneys had and received, based upon the theory that the $500 paid on account was to be returned unless the defendant delivered to plaintiff’s assignor a sufficient number of the cattle contracted for to equal in value, quality and quantity, the sum of $500.

The answer of the defendant denied all of the material allegations of the complaint, and in addition pleaded in abatement of the action the nonjoinder of a necessary party defendant.

Upon the issues thus raised the trial court rendered and entered judgment for the defendant, from which and from an order denying a new trial the plaintiff has appealed upon the judgment-roll and a statement of the case.

By the terms of the contract, a written memorandum of which was offered and received in evidence, the defendant agreed to deliver the cattle in a specified condition to the plaintiff’s assignor at King City in the county of Monterey. They were to be delivered in two herds—one on May 20, 1909, and the other on June 1st of the same year.

With reference to the number of cattle purchased and the price to be paid therefor, the written memorandum of the contract recited merely that plaintiff’s assignor had bought from the defendant “all fat cows and heifers at 6%(i,” and that the sum of $500 had been paid on account .of the purchase. It is apparent, therefore, that the exact number of