United Iron Works v. Standard Brass Casting Co.

CAMPBELL, J.,

pro tem.

Plaintiff sued to recover the purchase price of certain easting work as to which no dispute exists. By cross-complaint the defendant sought to recover alleged damages for improper performance of the contract. The case has been tried twice. At the first trial judgment went for defendant on its cross-complaint but was reversed by the district court of appeal

(United Iron Works

v.

Standard Brass Casting Co.,

69 Cal. App. 384 [231 Pac. 567]), a transfer of the case to the supreme court for hearing and decision being denied. On a retrial, submitted on the record of the first trial as contained in the bill of ex

[519]

ceptions on the former appeal with some additional evidence, the judgment went for plaintiff and the defendant was denied any relief under its cross-complaint, and from such judgment defendant has appealed.

The contract which is the basis of the action called for the manufacture by United Iron Works of fittings from materials furnished by Standard Brass Casting Company and in accordance with the specifications also furnished by it. The contract specifically provides that all castings not in accordance with the specifications should be subject to rejection and fixes the place of delivery and inspection at the plant of United Iron Works. Standard Brass Casting Company expressly reserved the right in accepting the offer of United Iron Works to reject all defective castings, while the printed rules of the Foundrymen’s Association, of which both parties were members and which admittedly were in the contemplation of both parties when the contract was made, provides: “All defective castings will be replaced and foundry shall not be responsible for any extra machine work or contingent damages caused by reason of defective castings.” Even in the absence of proof of appellant’s knowledge of this general custom, as a foundryman it was bound to know it.

(Miller

v.

Germain Seed Co.,