Porter v. Gestri

FINCH, P. J.

On the seventh day of June, 1923, the parties entered into a written contract of sale by defendant to the plaintiffs of a certain lot of grapes. The parts of the contract material to the questions raised by the appeal are as follows:

“Whereas, the seller covenants and warrants that he is the owner of a certain lot of 2,400 twenty-five pound boxes of dried black grapes, principally Zinfandel and Mission variety; . . . the said seller . . . does hereby sell said dried black grapes, and all of them to the buyer, and the buyer . . . does hereby buy the same from the seller for the price of II14 cents per pound net f. 0. b. cars . . . Fresno, California, loading to commence not later than the 8th day of June, 1923, or as soon thereafter as the transportation company can furnish cars suitable for loading. The buyer agrees to pay said seller the sum of . . . |6,750 as follows, to-wit: Net cash and acceptance, Fresno.”

Admittedly, on the eighth day of June, 1923, 3,561 twenty-five pound boxes of dried grapes were, by agreement of the parties, “delivered by defendant to plaintiffs under and by virtue of the terms of the written- contract,” for which the plaintiffs paid the defendant the agreed price of eleven and one-fourth cents per pound. The complaint alleges that the plaintiffs, in reliance upon the warranty contained in the contract, received the grapes and shipped

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them to New York City, believing that the grapes were of the kind mentioned in the warranty; that upon their arrival in New York the plaintiffs ascertained that the lot of grapes purchased “contained dried white grapes, as well as dried black grapes”; that the “defendant well knew that plaintiffs purchased said dried grapes for shipment to eastern markets”; that if the grapes had been as warranted they would have been of the value of $16,000 in New York, but that, by reason of the white grapes contained therein, they were of the value of only $6,000. The answer denies the foregoing allegations and alleges that the plaintiffs inspected the grapes before the execution of the contract and inspected and accepted them upon their delivery at Fresno. The court found the facts in accordance with the allegations of the complaint except as to the value of the grapes. In that respect it found that had the grapes been as warranted they would have been of the value of $14,021.43 in New York, but that, by reason of the mixture of white grapes with the black, they were of the value of but $7,789.68 in that city. Judgment was entered in favor of the plaintiffs for the difference. The defendant has appealed from the judgment.