Streff v. Gold Medal Creamery Co.

California Court of Appeal Dec 27, 1928 No. Docket No. 3637.Published

Before: Tuttle

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Holding. The court held that the trial court's findings against the defendant's counterclaims were supported by the evidence, and that the parties impliedly extended the original contract terms for milk deliveries made after the contract's expiration date.

Issues

Whether the trial court erred in awarding the contract price for milk delivered after the written contract expired.
Whether the trial court erred in finding no express warranty regarding the quality of the milk.
Whether the defendant's continued acceptance of milk with knowledge of alleged defects precluded recovery on its counterclaims.

Disposition. affirmed

Quotations verified verbatim against the opinion

“While the contract may have expired upon October 1st, defendant continued thereafter to accept deliveries without any suggestion of a change in the terms or price, and under such circumstances we hold that the trial court was justified”

“The court having found, upon sufficient evidence, that there was no express warranty, the question as to whether or not the milk was class A is utterly immaterial and no prejudice resulted from the ruling.”

“The crux of the whole matter is that defendant accepted deliveries of this milk for over five months. During all this time it had knowledge of the fact that the milk did not meet the requirements of their alleged guaranty.”

TUTTLE, J.,

pro

tem.

This is an action upon a written contract to recover $1,780.30 alleged to be due on account of 4,685 gallons of milk sold defendant. Judgment went for plaintiff in the sum of $1,764.72, and this appeal is prosecuted therefrom.

The complaint is in the ordinary form for milk sold and delivered between the dates of October 1, 1924, and November 8, 1924. The answer denies the allegations, and then proceeds, in fourteen pages, to set up three counterclaims. The first of these sets up an express and agreed warranty as to the quality of the milk sold. It is alleged that between June 1, 1924, and November 8, 1924, plaintiff delivered milk to defendant which was not in accord with the terms of said warranty, and that defendant was thereby damaged in the sum of $1,929.81. The second counterclaim is based upon a breach of the contract in reference to the delivery by plaintiff of the names of certain customers to defendant. It is stated that plaintiff refused to deliver such names, and that he continued to solicit the business of said customers after the sale of the goodwill of the business to defendant. Eighteen hundred dollars is asked on account of this item. The third counterclaim is in reality a cross-complaint. The claim is made that plaintiff, after the sale of the goodwill of his milk business to defendant, continued to solicit his old customers, and started up, in the city of Long Beach, a

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rival concern under a fictitious name. There is a prayer for judgment in the sum of $2,432.81, and for an injunction restraining plaintiff from soliciting said customers.

The court found against the defendant upon all the issues raised in his answer and cross-complaint. We are of the opinion that these findings are supported by the evidence.

A brief statement of the facts will shed considerable light upon the situation. On May 31, 1924, while plaintiff was the owner of a dairy and milk route, he entered into the following contract with defendant:

“Frank G. Streff and wife, Lou E., agrees to sell and Gold Medal Creamery Company agrees to buy the following described property:

Streff v. Gold Medal Creamery Co.

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TUTTLE, J.,

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