Pincus v. S. H. Kress & Co.

California Court of Appeal Mar 16, 1928 No. Docket No. 4899.Published

Before: Valentine

AI Brief

AI-generated · verify before citing

Holding. The court held that the judgment was unsupported by the findings because the trial court failed to make a direct finding on whether the prunes met the contractually required condition at the time of delivery.

Issues

Whether the trial court erred in failing to make a finding on whether the goods met the contractually required condition at the time of delivery.
Whether the contract terms regarding the condition of the goods upon arrival in Texas were satisfied.

Disposition. reversed

Quotations verified verbatim against the opinion

“In the absence of such finding the judgment is not supported by the findings”

“appellant was clearly entitled to a finding as to whether or not the prunes at the time of delivery were in “good and merchantable condition and fit for retail sale in its stores in Texas.””

VALENTINE, J.,

pro

tem.

This was an action for $2,750 for 2,200 boxes of prunes which it is stipulated were sold and delivered by plaintiff to defendant. Judgment was ren

[180]

dered for plaintiff for the full amount and this appeal is from that judgment.

Appellant’s contention is that plaintiff agreed to deliver to defendant, on board ears at Los Angeles, prunes which would be in good and merchantable condition on arrival and fit for retail sale in defendant’s stores in Texas. Respondent contends that the order was f. o. b. Los Angeles, that it so delivered the prunes in good condition and that thereupon its liability ceased. The court found for respondent.

At the opening of the trial it was stipulated as follows:

“Mr. Gerecht: Shall we stipulate to some facts, in order to save time?

“Mr. Andrews: I think that would be about the wisest thing to do.

“Mr. Gerecht: This is an action for prunes sold to the defendant in Los Angeles, amounting to the sum of $2,750, which the defendant has received and failed to pay for. The price was agreed upon. That is correct, is it not, Mr. Andrews? There is no question as to price?

“Mr. Andrews: There is no question as to the price.

“Mr. Gerecht: And there is no question as to the shipping amount which they have purchased or which we are suing for?

“The Court: It is stipulated that there were 2,200 boxes of prunes purchased at the price of $1.25 per box'?

“Mr. Gerecht: Yes, your Honor; that is five cents per pound.

“The Court: And delivered?

“Mr. Gerecht: And delivered.

“The Court: All right.

“Mr. Gerecht: And not paid for.

Pincus v. S. H. Kress & Co.

AI Brief

VALENTINE, J.,

More from California Court of Appeal

Related research

AI Brief