San Francisco Casing Co. v. Mueller

KERRIGAN, J.

This is an action to recover a certain balance of an account for goods sold and delivered by plaintiff

[395]

to the defendants. In the answer the sale and delivery of the goods is admitted, but under facts therein alleged the defendants deny liability, and in a cross-complaint they set forth a breach of warranty as to part of the goods, and demand an affirmative judgment in their favor. The trial court found in accordance with the allegations of the cross-complaint, and rendered a judgment in favor of the defendants.

The particular item of the account which is the basis of this controversy arises from an order for sheep casings dated February 12,1917. These casings were delivered March 28, 1917, and two days later the defendants in writing rejected them as unsatisfactory for the purpose for which they were bought. There is an abundance of evidence in the record that the casings were expressly warranted as suitable for defendants’ business and sound and merchantable, and also that they did not comply with such warranty. Plaintiff claims that the contract for the sale of the sheep casings was in writing, and that oral evidence was inadmissible to show the express warranty. It does not seem to have made that objection in the trial court; nor does the rale here relied upon apply where, as here, the contract was manifestly incomplete. (Kreuz

berger

v.

Wingfield,

96 Cal. 251, [31 Pac. 109];

Luitweiler Co.

v.

Ukiah Co.,

16 Cal. App. 198, [116 Pac. 707, 712].) That rule would be applicable, of course, where the transaction was evidenced by a formal written contract complete on its face, as was the case in

Germain Fruit Co.

v.

Armsby Co.,

153 Cal. 585, 594, [96 Pac. 319],