Da Rocha v. Corse

PARKER, J.,

pro tem.

Plaintiff brought Ms action in two counts, seeking damages alleged to have been sustained by Mm from defendant’s breach of contract. Plaintiff recovered on the first count and judgment was for defendant on count number two.

Defendant appeals from the judgment in favor of plaintiff on count one and plaintiff makes no appeal from that part of the judgment adverse to him. Therefore, throughout we will deal exclusively with the cause of action involved in this appeal, namely, count number one.

[337]

The complaint alleges that in December, 1924, plaintiff and defendant entered into a contract whereby defendant agreed to sell to plaintiff and plaintiff agreed to buy from defendant one hundred tons broken white glass bottles at nineteen dollars per ton, cost and freight delivered at Hongkong; that prior to the delivery of said merchandise plaintiff paid to defendant the sum of nineteen hundred dollars, and in addition thereto paid freight and insurance to Hongkong from San Francisco; that defendant delivered to plaintiff certain broken glass bottles of an inferior quality in that the same were a mixture of white bottle glass, as distinguished from broken white glass bottles, and white glass residue, with a percentage of powdered glass, to the damage of plaintiff in the sum of four hundred twenty and seventy-six one-hundredths dollars. The answer of defendant denied specifically the allegations of the complaint.

The court below found the allegations of the complaint to be true, and judgment was awarded plaintiff for the full amount prayed.

On this appeal the appellant presents two principal grounds for a reversal: First, it is his claim that the evidence is uncontradicted that he fully complied with his contract; second, even if it can be determined that there was a breach on his part, nevertheless plaintiff has not shown wherein any damage, actual or constructive, followed.

It appears that in December, 1923, the business relations between the parties commenced. There is no evidence as to what, if any, negotiations preceded the first sales, or whether those sales occurred in the nature of an ordinary “over the counter”, transaction without written or other contract than the generally implied contract attached to all sales. From December 10, 1923, to and including October 4, 1924, defendant made eight shipments of merchandise to plaintiff, all of which were apparently satisfactory; at least no complaint was made concerning the same. In the invoices accompanying these shipments we find in six instances the goods described as “broken white glass bottles,” and in the other two the description is “broken white bottle glass.” Practically the whole contention here is that plaintiff ordered and paid for broken white glass bottles and received broken white bottle glass; that is, in so far as the claim of damages here made is concerned. By way of explana