Altschul v. Alexander

HOUSER, J.

This is an appeal by defendant from a judgment against him in favor of plaintiffs for the sum of $2,350.

The substance of the complaint was that defendant agreed to sell to plaintiffs, and plaintiffs agreed to buy from defendant, five cars of grapes, to be delivered at a specified time, for the sum of $72.50 per ton, on account of which contract plaintiffs had paid to defendant the sum of $1,000 cash in advance; that to plaintiffs’ damage defendant failed and refused to deliver the grapes in accordance with the terms of the agreement, and also failed to repay to plain

[528]

tiffs the $1,000 paid hy them to defendant on account of the purchase price.

Appellant’s first point on his appeal is that the court failed to find on all the issues. However, the attention of this court is not directed to any issue upon which it is claimed that there was such failure hy the trial court; nor is reference made to any evidence to support such contention. In such circumstances no duty devolves upon this court to search the record for the purpose of discovering possible error in that regard. Inferentially, however, it appears that the alleged error of which appellant complains in this connection consists in a failure on the part of the trial court to find upon a question whether or not defendant was disappointed in not being able to buy the grapes from third persons in order that he might comply with the terms of his contract with plaintiffs. Such an averment in the answer constituted no defense and raised no issue. If facts of that nature were to be deemed a valid reason for excusing nonperformance of the provisions of a contract, no reliance could be placed upon any covenant whatsoever being kept, no matter with what assurances or solemnity it may have been agreed upon, nor what consequences may have ensued upon its breach. The rule is well settled that no error may be predicated upon a failure by the trial court to find upon immaterial issues.

(Souter

v.

Maguire,

78 Cal. 543 [21 Pac. 183];

Miller