American Factors, Ltd. v. Goss

TYLER, P. J.

Action for the return of the purchase price paid for certain hay which was destroyed by fire prior to actual delivery. The facts are as follows:

Hackfeld & Company, Limited, a corporation, engaged in the export business (predecessor of plaintiff herein), and defendants Chas E. Goss

&

Son, a corporation, hay dealers of San Francisco, entered into a contract for the sale and purchase of some 800 tons of double-compressed No. 1 wheat hay at the price of $31 per ton.

Defendants owned a warehouse in San Francisco, and bought hay from the growers and resold the same to local buyers and also to wholesalers and exporters. As a part of their export business in handling hay they owned certain high-power presses, which were used for the rebaling or double-compressing of hay, the process being to unbale and break up the ordinary size bales as received from the growers, and then Decompress or rebale the same under high compression, thereby reducing the size of each bale about one-half.

The object of this change was to permit of the export shipment of a greater quantity in a given sized space for the purpose of economy in shipment. Other than the decreasing of the size of the bales, nothing else was done to the hay. The plaintiff, American Factors, Limited (at the time of the transaction known as Hackfeld & Co.), were exporters, and in the conduct of their business purchased hay in San Francisco for sale in the Hawaiian Islands. About July 25, 1918, at San Francisco, plaintiff’s predecessor, Hackfeld & Co., made the purchase in question. The hay was paid for in full according to the terms of the agreement of sale. The price included delivery f. o. b. at Matson Navigation Com

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pany’s dock, when and as ordered by direction of plaintiff. The time of delivery was limited -by the agreement to June 1, 1919, but at the expiration thereof, plaintiff not having ordered all of the hay purchased, the time for the delivery of the balance was extended by mutual consent. When partial deliveries aggregating some 500 tons had been made, the warehouse of defendants was destroyed by fire.

At this time there was approximately some 302 tons of hay not called for or delivered. Demand for delivery of said balance was thereupon made by plaintiff upon defendants, who refused to comply therewith, claiming that 189 1/2 tons of the hay had been double-compressed and set aside for plaintiff and so entered in defendants’ books. The balance of 112 1/2 tons, so defendants claimed, had been likewise compressed and was in defendants’ warehouse at the time of the fire, but had not actually and physically been set aside for plaintiff, and was more or less mixed with other hay.