Sierra Land & Cattle Co. v. Bricker

ALLEN, J.

Action for money. Verdict and judgment for plaintiff, from which judgment, and an order denying a new trial, defendant appeals.

Plaintiff avers in its complaint that it purchased a span of horses from defendants upon an agreement that if, after trial, the same should prove unsatisfactory, such horses should be returned and defendants would repay the purchase money, together with expenses of shipping to the place of trial, and expenses incident to such trial. Further, that the team, upon trial, was found to be unsatisfactory, and plaintiff immediately notified defendants of such fact, offered to return said horses, and demanded the repayment of the money, all of which defendants refused. Defendants deny all of the allegations. The evidence in the record is sufficient to support the verdict. No question of rescission is involved. The action is based upon a contract, the breach of which is clearly shown. The articles of incorporation of the plaintiff, with the filing marks thereon, were evidence of the proper filing of such articles and the due incorporation of the plaintiff, even were such proof necessary, when we consider the written receipt in evidence from which it appears that the defendants contracted with the plaintiff in its corporate name and received money admitted thereby to have been money of the plaintiff. This written receipt was competent evidence in the regard just mentioned, as well as tending to prove the actual receipt of the money, which was denied.

[192]

Under the contract established, when defendants refused to receive the property upon the offer to return, the same became the property of the defendants, and plaintiff thereafter held that same as a depositary for hire. (Civ. Code, sec. 1503.) There is no issue pending in the case involving any counterclaim or demand growing out of a violation of the plaintiff’s duty as such depositary, and all testimony received with reference to the use or retention of the horses under the pleadings was immaterial. Plaintiff is the real party in interest, as shown by the receipt and other competent testimony. The evidence with reference to the unsoundness of one of the horses was not improper, as indicating the reasonable character of the claim of the plaintiff that the team was unsatisfactory; even when that fact is unnecessary to be shown, no prejudice could result to defendants by such proof. An agreement to return if unsatisfactory is satisfied when an offer is made and refused. ‘‘ The thing to be delivered need not in any case be actually produced upon an offer of performance unless the offer is accepted.” (Civ. Code, sec. 1496.) The cause of action accrued when defendants refused to perform their part of the contract. (Civ. Code, sec. 1440.)