Peterson v. Kaufman

STURTEVANT, J.

The plaintiffs commenced an action to recover on two alleged contracts of sale of certain carloads of grapes. The defendants answered and a trial was had before the trial court sitting without a jury. The court made findings in favor of the plaintiffs, and from a judgment entered thereon the defendants have appealed.

In form the first count of the plaintiffs’ complaint was a common count for goods, etc., sold and delivered for the reasonable value. The defendants answered that count by interposing certain denials, but did not plead any affirmative defenses. On the day the cause was called for trial the plaintiffs were allowed to amend by pleading the agreed value instead of the reasonable value. The defendants assign the order authorizing the amendment as error. The point cannot be sustained. (21 Cal. Jur., p. 195, secs. 135-137.)

On or about the 1st of July, 1926, the plaintiffs turned over to the defendants four cars of grapes. The defendants paid the plaintiffs $500 per car, or a total of $2,000. On the ninth day of August the defendants transmitted to the plaintiffs documents in the form of an account of sales as on consignment and at the same time forwarded two checks—$286.65 and $240.96. The plaintiffs did not cash the checks, but eighteen days later they commenced this action. No interviews or correspondence took place between the parties between the date of the transmission of the documents just mentioned and the commencement of the action. It was the theory of the plaintiffs that the plaintiffs and defendants had entered into a contract to buy and sell and they introduced evidence to sustain their contention. It was the theory of the defendants that the parties had entered into a contract of sale on consignment and they introduced evidence to support their contention. The defendants are emphatic in stating that they do not contend

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that they are entitled to question the findings based on a conflict in evidence, but they urge most earnestly that the general principles relative to an account stated and to a tender should apply and that therefore the judgment should have been for the defendants and not for the plaintiffs. Taking up the theory of stated accounts, one of the essentials underlying that theory is that there be an agreement that the balance is correct. ' An examination of the record shows nothing whatever as indicating an agreement except the mere delay of eighteen days. The findings of the trial court imply that it did not consider the delay of eighteen days as controlling. No other fact appearing in the record, we cannot disturb that implied finding. Taking up the theory of a tender, certain objections are waived if not made at the time of the tender. The entire theory is in the nature of an estoppel. (24 Cal. Jur., p. 531, sec. 14.) As no estoppel or tender was pleaded in the instant ease, under the facts above recited, we are unable to state that the act of the plaintiffs in commencing their action was not in itself a sufficient objection to the tender which the defendants now claim.