Marx v. Raley & Co.

ALLEN, P. J.

Action for the price and value of personal property sold and delivered. Judgment for plaintiff. Order denying a new trial. From the judgment and order defendant appeals.

The unverified complaint alleges the sale and delivery by plaintiff’s assignor to defendant, a corporation, of a car of oranges and pomelos at a guaranteed price of $2.25 per box, nonpayment of which is averred. The answer comprises a general denial and a special defense that the goods were shipped to defendant to be sold on commission, and alleges a full compliance upon defendant’s part and a tender to plaintiff’s assignor of the proceeds, less certain expenses. And in the answer it is averred that the goods were received and shipped pursuant to a letter alleged to have been sent by defendant and deposited in the United States mail on December 9, 1904, before the shipment of said ear. This letter was set out in the answer

in haec verba,

and, omitting date and address, is as follows:

“In our letter to you a few days ago referring to price on the car of oranges you are to ship for Xmas trade, at $2.25 per box, the said price means consignment basis, same as all the shipments we handled for you, freight, commission, and drayage to be deducted from this amount. If you understand it this way ship the car as per our order; if not, don’t ship it, as we are certain this is the very highest price that can be obtained this month. ...”

Upon the trial the court admitted testimony upon the part of plaintiff that no letter as set out in the answer, had ever been received; and the evidence being' satisfactory that the shipment was under an express contract to pay the price alleged in the complaint, judgment was accordingly rendered for plaintiff.

The principal contention of appellant is that the letter set out in the answer was a written instrument upon which its defense was based, and- its execution was not denied under oath. Hence, under section 448, Code of Civil Procedure, no

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proof was admissible controverting its due execution. If the paper set out is an instrument upon which the defense rests, its execution, which comprehends delivery, is admitted, and it is immaterial how this delivery was effected, whether personally or by mail. In our opinion, however, the letter embodied in the answer is not an instrument upon which the defense is founded in contemplation of the code.