Hamberger-Polhemus Co. v. Lewin

THE COURT.

An appeal by the defendant from a judgment entered in an action to recover the damage due

[705]

to his refusal to accept and pay for certain coffee purchased by him. The appeal is presented on the judgment-roll. As grounds therefor it is contended that the title to the coffee passed to the defendant; that after his refusal to accept and pay the agreed price therefor the plaintiff, without complying with the provisions of section 3005 of the Civil Code, resold the coffee in the open market and was consequently entitled to no relief in the action.

The complaint, to which was annexed a written - contract executed by the parties, alleged that, pursuant to the terms thereof, the “plaintiff agreed to sell to defendant 500 bags of Columbian Coffee Aripe brand at the agreed price of 271/4^ per pound, ex dock San Francisco, net weight actual tare.” These allegations were admitted by the answer. The contract also contained the following provisions:

“Quality:

To be based upon Columbian Coffee—Aripe Brand—usual quality. . . .

Payment:

Cash less 2%. Full payment in exchange for delivery order on day after presentation of invoice with weight tags attached.

Terms:

Sale to be absolute and coffee is to be taken by buyer if average grading within one-half

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cent per pound of the sample or description sold on at the graded allowance. . . . Decision of quality to be final and binding upon both buyer and seller, to be determined by C. E. Bickford & Co.” The complaint further alleged that upon the arrival of the coffee in San Francisco the same was examined by C. E. Bickford & Co. and by them determined not to be more than one-half cent per pound below usual quality; that on October 14, 1926, the same was weighed by a public weighmaster and certified to be of the gross weight of 76,691 pounds; that on the same day an invoice of the coffee with the weight tag attached was delivered to the defendant; and on October 16, 1926, a delivery order therefor was tendered, the net weight of the coffee being 75,941 pounds. Demand for the agreed net price, namely, $19,907.94, and a refusal by the defendant to accept the coffee or pay therefor was alleged, and that thereafter, on October 18, 1926, defendant was notified that the plaintiff intended to sell the coffee in the open market and hold him for any damage due to his refusal. It was further alleged that on October 19, 1926, the coffee was sold for the total sum of $18,789.13, from which plaintiff paid a brokerage fee for selling amounting