Daley v. Irwin

KERRIGAN, J.

Action to recover damages for breach of warranty in the sale of barley seed. Plaintiff recovered judgment for the sum of $6,723, which was based upon the difference in value of the crop grown from the seed and that which would have been grown had the warranty been complied with. The defendant appeals.

The facts of the case, either as claimed by the respondent or as established by the nncontradicted evidence, so far as they are necessary to be stated for the purpose of the decision, are as follows: The plaintiff, intending to plant to barley for the purpose of raising a crop of hay, about 900 acres of land situated about eighteen miles from the city of San Diego, called upon the defendant at his place of

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business in that city. He there saw the defendant’s manager, and stated to him that he' desired to purchase one thousand sacks of recleaned barley for seed. He was shown barley of this character, and told that it would cost three dollars per ton more than barley of ordinary quality. He was informed that the price would be that prevailing at the time the barley should be called for, and that if he desired any particular lot he would have to have it set aside for him. This the plaintiff declined to do, but stated that the price was satisfactory,- that he would send for the barley when needed, and that every time he came into town he would pay for whatever had been supplied in the meantime, which arrangement the defendant stated would be acceptable. Plaintiff then left the establishment of the defendant, having given no order in writing, having paid no part of the price, and having received or accepted no part of the barley, so that it is clear that, under the statute of frauds, the value of 1,000 sacks of barley being admittedly over $200, at this moment no valid or enforceable contract had been entered into. (Code Civ. Proc., sec. 1973, subd. 4; Civ. Code, sec. 1624, subd. 4, sec. 1739.)

Shortly thereafter the plaintiff, having business in the Imperial Valley, went to that region, but before doing so instructed one Valeriano Ramos, who had been working for him for seven years and who acted as foreman over the other employees of the ranch, to plow and plant to barley the said 900 acres, and to procure from the defendant from time to time as he needed it recleaned barley for that purpose. In carrying out these instructions Ramos ordered various lots of recleaned barley from the defendant, sending the plaintiff’s teams therefor. Each of said lots was separately billed to the plaintiff at the prevailing (and varying) market price. The barley supplied, although claimed by the defendant to be recleaned, was full of weed seeds, radish seeds, chaff, and trash, which was apparent upon the most casual inspection, notwithstanding which Ramos, with the aid of his workmen, and in spite of their repeated complaints that the operation of the seeders was delayed by the large amount of foreign matter in the seed, proceeded to sow this barley, and continued to do so until the return of the plaintiff to the ranch, wdio immediately ordered its planting to be discontinued and procured from other sources