Romer v. Wehner

NOURSE, J.

Plaintiff sued to recover damages for the breach of a contract for the sale of grapes and grape juice. The defendant answered and filed a cross-complaint seeking the recovery of damages from plaintiff for his breach of the same contract. In his amended complaint the plaintiff alleged that “said defendant agreed to sell to plaintiff, and plaintiff agreed to buy 200 tons of black grapes of the crop of 1919 . . . for the sum of $35 per ton; and also 25,000 gallons of unfermented black grape juice . . . for the price of 45c per gallon; that by the terms of said agreement all of said personalty was to be paid for when delivered. . . .

“That plaintiff is, and has at all times been, ready, willing and able to receive and pay for the said grapes and grape juice, according to said agreement, and to otherwise perform all of the terms of said agreement on his part to be done or performed. . . .

. “That said personal property so agreed to be sold, and remaining undelivered, if the same had been delivered according to said agreement, would be now, and when delivered, of the value to plaintiff of $21,706.01.”

The execution of the agreement as alleged in the amended pleading was admitted by the defendant in his answer, but some of its terms were controverted, such as place of delivery of the grapes, color of the grape juice, and the time of payment for both the grapes and the grape juice. In the cross-complaint the defendant alleged that' the cross-plaintiff and cross-defendant “entered into an agreement whereby cross-plaintiff agreed to sell to said cross-defendant, and said cross-defendant agreed to purchase from cross-plaintiff 200 tons of grapes of the crop of 1919, at the agreed price of $35 per ton, and 25,000 gallons of grape juice at the agreed price of 45c per gallon; said cross-de

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fendant to furnish and provide the boxes for delivery of said grapes, and the barrels for delivery of said grape juice, and said grape juice to be taken from a stock of grape juice which had theretofore been manufactured by cross-plaintiff, and which was then being stored by cross-plaintiff upon his premises.” It was further alleged that the parties expressly agreed that both the grapes and the grape juice were to be delivered in installments as harvested or prepared for delivery and that payment therefor was to be made upon the delivery of each installment; that various installments: of the grapes were delivered to the cross-defendant and accepted and paid for by him, but that cross-defendant, though often requested to do so, had failed and refused to pay for certain installments thereof, the agreed price of which amounted to $1,516.84. As a second cause for cross-complaint it was alleged that the cross-defendant, though often requested to do so, had failed to deliver to cross-plaintiff any barrels for the shipment of the grape juice, and had refused to receive, accept, or pay for any of the grape juice, to the damage of the cross-plaintiff in the sum of $3,750.