Barrios & Co. v. G. v. Pettigrew Co.

STURTEVANT, J.

The plaintiff sued for and recovered a judgment for $1,483.41 alleged to be owing on a sales contract. The defendant has appealed from the judgment and has brought up the judgment-roll and a bill of exceptions.

The plaintiff pleaded its cause of action in three counts. In the first count it pleaded that within two years last past, at the city and county of San Francisco, state of California, defendant above named became and now is indebted to plaintiff above named in the sum of $1,433.25, being the difference between the purchase price of five cars of Sacramento Valley prunes purchased by plaintiff from defendant and the resale price of said prunes from plaintiff to defendant. The second count was based on an open book account, but at the close of the plaintiff’s case that count was dismissed. The third count pleaded an account stated. The defendant interposed an answer which contains specific denials, but does not plead any new matter. The trial court made findings in favor of the plaintiff in which it found on the first count and on the third count in favor of the plaintiff.

The bill of exceptions contains three memorandum contracts. By the first one, which is. dated February 1, 1922, the plaintiff bought of the defendant five carloads Sacramento Valley prunes, crop of 1922, 60,000 pounds to the

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car, sizes ranging 40/50 to 70/80 at 6¾ cents bulk basis, time of shipment September, October 15, 1922. The second contract was dated August 16, 1922, and is in form slightly less formal than the first instrument. It purports to be a sale by the defendant to- the plaintiff of the same quantity of the same article at 7¼ cents per pound. That paper contains this additional matter: “This is a resale of G. V. Pettigrew Co. Inc. regular dried fruit contract dated February 1, 1922.” On August 18, 1922, the parties executed another instrument which both parties, conceded to be a more formal statement of the transaction dated August 16, 1922.

On the trial of the case the plaintiff called as a witness Alberto Barrios, vice-president of the plaintiff corporation, and did not call any other witnesses. The defendant did not call any witness. As to what was the intention of the contracting parties at the time that the instrument dated February 1, 1922, was executed, or when either of the subsequent instruments were executed, the record is silent, except that Mr. Barrios testified that he had several conversations with Mr. Pettigrew subsequent to the second contract of August 18, 1922, and in one of those conversations, after Mr. Pettigrew had bought the prunes from him, all the witness wanted was the difference in the price or the profit he made; in other words, it was a wash sale and the witness was only interested in the difference between the two contracts because Pettigrew was supposed to deliver to Barrios and Barrios was supposed to deliver to Pettigrew. The witness further stated that he did not know whether there were any prunes—any actual prunes represented by the contract. He expected prunes if he had sold to a third party. When the witness entered into the contract, August 18, 1922, the whole transaction became a wash sale and the witness was only interested in the difference between the two contracts. That is done every day. On October 2, 1922, the plaintiff presented the defendant a bill, “To wash-out on five cars, 60,000 pounds net each 40/70 Sacramento Valley prunes . . . difference due us $1433.25“ The appellant contends that the whole transaction was a “wash-out” sale within the technical meaning of that expression as used by the trade when the trade is referring to a gambling contract.