Jacobson Reimers Co. v. Tozai Co.

CHIPMAN, P. J.

The action is to recover judgment for

damages alleged to have been the result of defendants’ failure to perform their covenants under a contract for the sale of turkeys, reading as follows:

“Colusa, Cal., Nov. 5, 1917.

“We agree to sell Jacobson Reimers Co. of S. F. at twenty-seven and half cents per pound for choice dressed turkeys f. o. b. station numbering from Two hundred head up to Twelve hundred between now and Thanksgiving. Hens to weigh seven pounds and over and gobblers twelve pounds and over per piece.

“Tozai Co.

“By K. Hayashi.”

It is alleged in the complaint that demand was made by plaintiff of defendants, within the period mentioned in said contract, that defendants comply therewith by delivering

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twelve hundred turkeys, hut defendants refused to do so or to deliver any turkeys whatsoever; that the market price of turkeys had advanced at that time to forty-two cents per pound, and that by reason of defendants’ failure to deliver said turkeys plaintiff was damaged in the sum of $1,653. The complaint is verified. Defendants filed a general and a special demurrer, which being overruled, they answered. The answer is a specific denial of the averments of the complaint, except that they do not deny that demand was made upon defendants to comply with the terms of the said contract and their refusal to do so; alleged as further answer that defendants delivered to plaintiff “the written offer set forth in plaintiff’s complaint,” but alleged that plaintiff at no time “accepted said offer in accordance with the terms thereof. ’ ’ The cause was tried by the court without a jury.

The court found that defendants executed and delivered to plaintiff the written agreement set forth in the complaint by virtue of which “the defendants agreed to sell and deliver to the plaintiff f. o. b., meaning free on board cars at Colusa Station, California, twelve hundred choice dressed turkeys of the kind and weight in said agreement specified, that is to say, not less than six hundred choice dressed hen turkeys weighing not less than seven pounds a piece and six hundred choice dressed gobblers weighing not less than ten pounds a piece, in all weighing eleven thousand four hundred pounds at least, at the price of twenty-seven and one-half cents per pound to be delivered as aforesaid between the said fifth day of November, 1917, and Thanksgiving Day, to wit, the twenty-ninth day of November, 1917, executed and delivered to said defendants a written acceptance of said offer of sale and delivery”; that in accordance with said offer of sale and acceptance thereof “the plaintiff, at the city of Colusa, California, demanded of the said defendants the delivery of said twelve hundred turkeys of the kind and weight and at the price specified in said written offer of sale, and in accordance with the terms thereof and plaintiff’s written acceptance thereof, but that the defendants then and there refused, and ever since have refused, to deliver the said twelve hundred turkeys or any number thereof, or any at all, as provided in said written agreement; that on the said twenty-eighth day of