Passow & Sons v. Harris

JAMES, J.

Defendants by written contract agreed to purchase from the plaintiff three billiard-tables for an aggregate price of $975. The office of plaintiff was at the city of San Francisco. In this contract it was agreed that $225 should be paid as the initial payment and the sum of $30 per month thereafter paid until the whole amount mentioned had been satisfied. The contract also contained this clause: “Shipped to Los Angeles on or about the 5th day of June, 1913, ...” The contract in its other terms provided that when the total price had been paid a bill of sale should be given, and further provided that if the purchaser should “refuse to accept delivery of or to return the said goods, then the entire unpaid balance of this contract, with interest, shall in either of said cases immediately become due and payable and the said Pas-sow & Sons may enforce payment of the entire amount, principal and interest then unpaid, or, if they so elect, they may cancel this contract and take possession of said goods, without legal process.” A clause in the latter portion of the writing reads as follows: “In all matters herein mentioned time is declared the essence of this contract.” Defendants at the time they entered into this contract owned three old tables, which it was agreed should be valued at $225 and that amount credited as the initial payment on the contract for the new tables. Defendants refused to receive the new tables when offered to them and converted the old tables to their own use; whereupon this action was brought to recover the balance due under the contract for the sale of the new tables,

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and also the sum of $225 as the value of the old tables. Judgment was in favor of plaintiff. A motion for a new trial being denied, this appeal was taken from the order made in that regard and also from the judgment.

The evidence showed that upon the making of the contract plaintiff caused the new tables to be shipped from Chicago to San Francisco, at which latter place they were received. On June 9th the tables had not been shipped from San Francisco to the vendees in Los Angeles, and on that date the defendants wrote to the plaintiff that they had not sold any of the old tables, but that the plaintiff could, any time after June 20th, ship the three new tables to them. In a letter dated June 10th the defendants again wrote the plaintiff as follows: “I am writing to let you know that we sold the 3 tables about 1 hour after I wrote you yesterday. ... You can ship 3 tables any day that will be convenient to you.” In a letter dated June 11th the plaintiff replied: “Your three new tables will be shipped from here June 17th and will arrive in your city about three days later. ” In a letter dated June 16th defendants wrote the plaintiff as follows: “I wish to say that it will not be necessary for you to ship the tables ordered, and I herewith notify you that I countermand this order, as I have made other arrangements.” The plaintiff immediately wired in response to this letter, stating to the defendants that it would insist upon the contract being enforced, and in a letter of the same date reiterated their determination in that regard, and requested that defendants give advice as to what date they desired the tables shipped; otherwise that the plaintiff would proceed against them. To this letter the defendants made response by telegram as follows: “Do not ship tables we revoked and countermanded order letter June sixteenth refuse to accept.” The testimony showed that immediately following the receipt of this telegram the agent of plaintiff came to Los Angeles and demanded the delivery of the three old tables purchased by the plaintiff, and was told by one of the defendants that the tables were gone and that he did not know where they were. Defendants offered no testimony, but depended for their defense upon two principal contentions: First, that the condition as to delivery of the new tables on or about the 5th of June was not complied with, and that therefore the plaintiff was in default as to its obligation in that particular. Second, that there