Bidegaray v. Ormaca

BRITTAIN, J.

The defendant appeals from a judgment against him for $1,250. He presents a single question

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of law in support of the appeal, based on an objection to the admission of evidence over the objection that it was an attempt .to change the terms of a written contract by parol in contravention of section 1698 of the Civil Code. The respondent maintains that the section has no application to the facts of the case.

The respondent sued on two counts, the second being in the ordinary form of an action for debt. In the first count it was alleged that, in May, 1918, the defendant sold to plaintiff 500 lambs at the agreed price of seven dollars per head; that the plaintiff then paid the defendant $250 on account, and the defendant agreed to deliver the lambs to the plaintiff at Helm Station, in Fresno County, on or about May 26, 1918; that plaintiff was ready and willing to pay the balance of the purchase price on May 26th and thereafter; that the defendant had failed and refused to make delivery, and, on information and belief, that defendant had sold the lambs to others on or about May 26th, and still retained the $250 paid him; and that plaintiff had been damaged in the sum of $1,750. The appellant alleged that the plaintiff agreed to take the lambs on May 26th at Helm Station and to pay for them; denied the readiness of the plaintiff to pay the balance of the purchase price; denied that the defendant had failed or refused to deliver, and alleged that he was willing to deliver on May 26th; that he then offered delivery; that the plaintiff then refused to accept delivery, and that the defendant thereafter held the lambs for a period of five days, up to June 1st. He denied damage, and denied the debt set up in the plaintiff’s second cause of action.

The, court made general findings, first, that all the allegations in the first cause of action in the complaint were true, except as to the amount of damages, which the court found to have been $1,250, and, second, that all the allegations of the second count were true, except as to the amount of the debt, which was found to be $1,250.

Exclusive of the evidence to which the objection was interposed, the record shows that May 26, 1918, was Sunday. The appellant stands upon what he considers his strict contractual rights. An act appointed by law or contract, other than an act of necessity or mercy, to be done on a holiday, may be performed on the next business day.