Blackmer v. Pierce

STURTEVANT, J.

The plaintiff commenced an action against the defendant to recover $3,316.20, alleged to be the balance due and owing to him for a lot of walnut-trees sold and delivered. The defendant answered and filed a cross-complaint. The plaintiff answered the cross-complaint and a trial was had before the trial court sitting without a jury. The trial court made findings of fact and ordered judgment entered in behalf of the plaintiff as prayed. Prom that judgment the defendant has appealed and has brought up the judgment-roll.

Prom the pleadings it can be ascertained that the plaintiff is a nurseryman and engaged in rooting and grafting walnut-trees. On the 18th of' November, 1919, the defendant and plaintiff entered into a written contract for the purchase and sale of 5,000 “Placentia Perfection Walnut Trees grafted on Royal Hybred, Black Walnut root; the same now being situate on Lot Number 118, Tapo Ranch, for delivery spring 1921 for the price of $1.50 per tree, trees to be eight feet and up, consecutively; trees to be free from insect pest or disease, and to pass County Horticultural inspection. Twenty-five per cent of the purchase price, or $1875, at the time this contract is made and

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entered into, receipt of which is hereby acknowledged by seller, the balance when the trees are delivered.

“If from any cause beyond the control of the seller, such as damage by the elements, he is unable to make delivery of trees herein sold, upon return of the first payment hereinbefore mentioned to buyer the parties hereto shall mutually be released from the provisions of this agreement. ...”

On the sixteenth day of April, 1920, the parties entered into another contract to buy and sell other trees located on Lot 118. The plaintiff’s complaint, the defendant’s answer, the defendant’s cross-complaint and the plaintiff’s answer to the cross-complaint each and all treat the dealings between the parties as one cause of action. In the defendant’s cross-complaint it is alleged that the plaintiff delivered to the defendant 1,007 walnut-trees. It is not alleged that any objection was made by the defendant to any one of said trees, or that the defendant objected to accepting the' said 1,007 trees. The appellant complains that “There is no finding by the court Upon the issue that the sale by plaintiff of 400 of the 5,000 trees to be delivered under the contract dated November 18, 1919, to a person other than the defendant, was with defendant’s consent.” There was no allegation on the subject in any other pleading than the answer to the cross-complaint. But the record before us does not show that any evidence was introduced in response to that allegation. In support of the judgment we must assume that no evidence was offered on the subject when as here the record is silent. The appellant then claims that “There is no finding of the court upon the issue that plaintiff at any time notified defendant that he could not make delivery in full under the contracts or that he at any time returned or offered to return to defendant the money which defendant had advanced upon the contracts.” An examination of the pleadings discloses that the pleadings made no issue on that subject. There was neither allegation nor denial on the subject. Moreover it has not been made clear to us that the proper construction of the contract was to the effect that if the seller could not make a full and complete delivery, then and in that event he was not called upon to make a delivery in part if he was able to do so.