Marin Rock Co. v. E. B. & A. L. Stone Co.

KERRIGAN, J.

This is an appeal by defendant corporation from a judgment awarding plaintiff the sum of $598.35 as damages for breach of contract.

From the pleadings it appears that plaintiff entered into a contract with the county of Santa Clara for the construction of a county highway between the towns of Sunnyvale and Cupertino, in said county. It is alleged in the eom

[210]

plaint that defendant thereafter agreed with plaintiff to sell and deliver to it for a stipulated price all the crushed rock and sand required by plaintiff to perform its contract with the county; that defendant delivered to plaintiff a portion of such rock and sand, but failed and neglected, notwithstanding the demand of plaintiff, to furnish 1,945 tons thereof necessary to the completion of the work; that the plaintiff on account of such default was compelled to and did purchase said amount of rock and sand elsewhere, and paid therefor the sum of $499.31 in excess of the price at which defendant had agreed to sell and deliver the same to plaintiff; that because of said default of defendant plaintiff was damaged in the sum named, with interest thereon. By its answer defendant denied the allegations of the complaint, and, further answering, set up a separate defense, the substance of which is that it merely gave plaintiff a quotation of prices for the material to be furnished from one of its plants known as the Campbell plant, and that under this offer of quoted prices plaintiff purchased from defendant a large number of cars of sand and gravel. It further alleged that because of an objection made by a deputy county inspector to the Campbell material, defendant substituted a more expensive kind from another of its plants, known as the Coyote plant, at no greater cost to plaintiff, and at a great loss to defendant, and that when plaintiff began to construct another section of the highway which called for the Coyote grade of rock, plaintiff, without notice to or demand on defendant, purchased seventeen cars of material from a competitor, in consequence of which defendant refused to further deal with plaintiff, whereupon plaintiff purchased twenty-two additional cars of material elsewhere. The number of tons referred to in the complaint consisted of these two trainload lots.

The trial court, Honorable John Hunt presiding, found that the parties had entered into the contract as alleged by plaintiff, and that defendant refused to deliver the 1,945 tons of material, notwithstanding plaintiff’s demand, and rendered judgment in the sum above named.