Reed v. Palmer

TYLER, P. J.

Action to recover the sum of $2,219.88, alleged to be the balance of the purchase price of certain steel sold by plaintiff’s assignor to defendants.

Concerning the facts there is little or no controversy. It appears therefrom that defendants were on or about May 25, 1917, constructing a certain building for the United States government. In connection therewith they required certain structural steel, and they entered into a contract with the Concrete Engineering Company, plaintiff’s assignor, to supply them with this material. The steel consisted of about eighty-five tons' of re-enforcing bars, for which defendants agreed to pay $4.40 per hundredweight, amounting in all to the sum of $4,719.88. Delivery was to be made upon a certain date, but the steel did not arrive according to schedule and defendants thereupon notified plaintiff’s assignor of this fact, informing it at the same time that they would be compelled to obtain the material elsewhere, and could not therefore accept delivery of the same as contracted for. The steel subsequently arrived, but too late to be used in the construction of the building for which defendants had purchased it. Efforts were then made to induce the defendants to receive it, notwithstanding the fact of its tardy arrival. These efforts proved successful, and a new arrangement was during December,

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1917, thereupon entered into between the parties, by which defendants purchased and the vendor sold the steel originally contracted for, to be used in other work. The vendor continued in possession of the material and agreed to keep the same for defendants at its yard in San Francisco until called for. One of the conditions of the new arrangement was that defendants should pay the entire purchase price originally agreed upon within ninety days after December 14, 1917. Upon the completion of this agreement the steel was switched from the railroad to the yards of plaintiff’s assignor and there unloaded.

Thereafter defendants called for and received delivery of a portion of the steel, amounting to some twenty or twenty-five tons, for which they gave their check in payment. Subsequently defendants asked for delivery of the remaining portion thereof, but it was then discovered that the steel had been stolen and sold as junk by the superintendent of plaintiff’s assignor. Notwithstanding this fact payment for the same was demanded by the Concrete Company. Defendants refused to comply with this demand and the present suit resulted. The case was tried by the court without a jury, and judgment was rendered in favor of defendants for their costs, and this is an appeal from such judgment.