Lund v. Lachman

LENNON, P. J.

This is an action for damages for the alleged breach of a contract to purchase personal property. The appeal is from the judgment in favor of the defendant and from the order denying a new trial.

The facts of the case as revealed by the pleadings and proof are substantially these: On November 30 and December 1, 1910, the defendant entered into two contracts with the plaintiffs for the purchase of certain specified quantities of claret quart bottles, to be shipped from Sweden during-the months of February or March, 1911. The contract price was $5.85 per gross, and delivery was to be made from the ship’s side at San Francisco. The bottles arrived at San Francisco on the steamship “Strathbeg” on June 15, 1911. They were tendered to the defendant on June 16, 1911, and refused by him. The bottles Avere thereupon removed to a warehouse by the plaintiffs, where they were stored and insured, and from time to time sold at private sale at varying prices for the aggregate sum of $2,912.85, which Avas $12.15 less than the sum total of the purchase price specified in both contracts.

The trial court in its findings of fact found that the plaintiffs did not use due or any diligence in making sales of the bottles; that the several sums obtained therefor at the several sales were not separately or

in ioto

the highest obtainable market price; and that plaintiffs were not compelled to have such bottles removed to a warehouse because of the defendant’s breach of the contracts.

The bottles having been sold at private sale, and it being an admitted fact in the case that title to the bottles had not passed from the plaintiffs, it is conceded, as it must be, that plaintiffs’ only remedy was damages for the breach of the contracts

(Cuthill

v.

Peabody,

19 Cal. App. 304, [125 Pac. 926]); and that the measure of the damages alleged to have been thereby

[33]

sustained is to be found in section 3353 of the Civil Code, which provides that “In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale.”