Burrell v. Southern California Canning Co.

KERRIGAN, J.

Plaintiff, as assignee of a certain corporation known as the Anderson-Barngrover Manufacturing Company, brought this action against defendant to recover the price of certain machinery and mechanical appliances used in the canning of fruits, which were alleged to have been sold by the Anderson Company to defendant.

Three counts or causes of action are set forth in the complaint. The defendant admits the ordering and receipt of the goods, but by answer and counterclaim raises certain issues as to the performance of the contract, and claims damages for alleged breach of warranty in connection therewith in a sum greatly.in excess of the amount sued for.

The-trial was had by jury, which rendered both a general and a special verdict. The special verdict found in favor of plaintiff for the sum of $5,824.42 based upon the first count, the further sum of $4,427 under the second, and the sum of $708.39 upon the third count. It also found in favor of the defendant in the sum of two thousand five hundred dollars

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as damages for breach of warranty as to articles embraced in the second count, and this sum was deducted from the amount awarded plaintiff under the special verdict, and a general verdict was rendered in favor of plaintiff for the sum of $8,459.81.

Defendant moved the court to vacate the verdict and grant a new trial, and urged as reasons therefor the insufficiency of the evidence to justify it, that it was against law, and upon the further ground of errors in law occurring «at the trial, consisting of certain rulings as to the admission of evidence and in the giving of certain instructions to the jury. The motion was denied, and this appeal is from the judgment and such order.

The main argument of appellant is based upon the claim that the evidence is insufficient to support that part of the verdict based upon the second count of plaintiff’s complaint. Under this count plaintiff sought to recover the price of certain articles called “cookers” which were used in the canning of fruits. By its answer defendant admitted the contract for the purchase and sale of these articles, but alleged that they were manufactured for a specific purpose and under a specific warranty, and that they -were not fit for the purpose as warranted, and further, that they were never accepted, and it is upon such question of acceptance that the evidence is claimed to be insufficient.