Hiraide v. Weyl-Zuckerman & Co.

CONREY, P. J.

The defendant appeals from a judgment rendered against it for balance of the purchase price owing to the plaintiff on a contract for potatoes sold a,nd delivered.

The following facts were found by the court, all of which were established by the evidence: On June 6, 1917, defendant agreed to buy from plaintiff two carloads of potatoes of 270 sacks each, to be delivered f. o. b. ears at Anaheim, California, at the price of three cents per pound. The first carload was delivered and paid for. On the sixteenth day of June the plaintiff tendered for delivery a second carload of potatoes ■ weighing 30,975 pounds. Defendant inspected the potatoes and found that some of them were sunburned; thereupon, as a condition of acceptance of those potatoes, the parties entered into a written modification of their contract in the following terms, signed by the plaintiff: “I hereby accept one-half payment for 270 sacks potatoes 30925 lbs. at $3.00 cwt. $464.63 and agree to stand behind the shipment and get the balance as soon as returns come. ’ ’ Thereupon, defendant paid to plaintiff said sum of $464.63 on account of said carload of potatoes and thereafter shipped them and caused them, to be sold at El Paso, Texas. At that place it was found that some of the potatoes had spoiled and were unfit for sale, and the sale was of the remainder of the lot.

Responding to an allegation of the answer 'that said carload of potatoes was accepted by the defendant and delivered by the plaintiff upon consignment, the court found that said allegation that they were on consignment was not true. Nevertheless, the court found that by said modification of the contract the plaintiff agreed that defendant should sell or cause to be sold the said 270 sacies of potatoes and be entitled to deduct from the proceeds the value of any potatoes which should be found to be spoiled upon such sale and delivery and pay

the balance of the

proceeds, less said sum of $464.63, to the plaintiff. The court further found that there is due, owing, and unpaid from defendant to plaintiff

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for said carload of potatoes the sum of $271.55, with interest at seven per cent from June 16, 1917. Judgment was entered accordingly on February 28, 1918, for said principal and interest, making at that time a total sum of $283.06.