Arsenio v. Smith

PREWETT, P. J.,

pro

tem.

The appellant sues the respondent to recover $2,037 claimed as a balance due upon a sale of 223 tons of hay at an agreed price of $18 per ton. It is averred and admitted that the hay was delivered to respondent. The. respondent in his answer, among other things, admits and avers “that said plaintiff agreed that said hay would be well baled and cured and in good merchantable condition when delivered to defendant. That thereafter . . . the said plaintiff did deliver to the defendant 223 tons of barley and alfalfa hay at El Rico Station, in Kings County, California, but that a great portion of said hay was damaged and not in good merchantable condition, and that thereupon the said plaintiff and defendant agreed that said defendant should sell said hay at the best price that he could obtain for the same, and that the said defendant- would pay to the plaintiff for said hay the amount that he, the defendant, received for said hay, less two dollars per ton, which said plaintiff then and there agreed to pay to the defendant as a commission for handling and selling said hay.” There is no claim that the defendant has failed to live up to the terms of this oral contract.

The answer is somewhat defective in not specifically averring a rejection of the hay by the respondent and of the mutual abandonment thereupon of the written contract. However, the appellant makes no point as to the sufficiency of the -answer. Furthermore, it uiay reasonably be deduced from its allegations that the hay was rejected by the respondent, and that thereupon the parties mutually abandoned the written contract and entered into the oral one. The case throughout was clearly tried upon this theory, and the findings set out all the facts with skillful detail. But even if the answer were slightly defective, the case should not be reversed therefor. (See. 475, Code Civ. Proc.)

[175]

It is not controverted that the hay was damaged and that the respondent immediately notified the appellant thereof. The court found that the parties thereupon mutually abandoned the original contract and entered into the oral contract set out in the answer. The evidence abundantly sustains the findings and judgment. The evidence shows that the appellant himself actually sold some of this hay to third parties.