Laurence v. Los Angeles Junk Co.

ARCHBALD, J., pro tem.

Plaintiff and defendant entered into a contract December 15, 1928, in which defendant agreed to sell plaintiff “six hundred tons of old newspapers, Clear No. 1, not to exceed 3% colored matter. To be packed either 272 lbs. or 280 lbs. to the bale, at the option of the said C. R. Laurence, and guaranteed not to exceed 60 cubic feet to the ton; price to be $21.00 per net ton of 2000 lbs. f.o.b. Los Angeles harbor, if packed in ordinary second hand burlap,” or “$20.50 per net ton of 2000 lbs. if packed in cement burlap. Three hundred tons of the above mentioned newspapers are to be delivered to the Los Angeles wharf for shipment per steamer during the month of February, 1929,” and the balance during the month of March, 1929. Reservation for steamer space for the bales was to be made by plaintiff, who was to “furnish the said Los Angeles Junk Co., Inc., with all shipping instructions, permission to deliver the above named material to the Los Angeles wharf, stencils, marks, etc., at least fifteen days prior to the scheduled sailing of the steamer on which space reservation has been made”. The contract also provided that “the above material is to be packed with 4 hoops (painted red) to each bale. Payment to be made to said Los Angeles Junk Co., Inc., after the steamship company issues bill of lading for the above named material.” Apparently plaintiff notified defendant as to the number of pounds to be packed in each bale, and evidently selected the secondhand burlap pack as the one to be used. Defendant delivered 730,200 pounds under the contract and was paid

[501]

for the same by plaintiff. On or about the 18th and 20th of March, 1929, defendant delivered a total of approximately 231,920 pounds, baled as aforesaid, to the wharf at Los Angeles harbor, at which latter date it insisted upon being paid for the two lots so delivered and instructed the steamship company to hold the bills of lading and not deliver them to plaintiff except on defendant’s order. Plaintiff refused to pay until the bills of lading were released, whereupon defendant declared the contract to be null and void and refused to proceed thereunder. From a judgment against it in the sum of $1,409.40 defendant has appealed.

The evidence is undisputed that the steamship company received its shipping instructions from plaintiff on March 22d and prepared bills of lading covering the two lots of bales on the same day, and that it would have delivered them to plaintiff had he called for them at any time prior to defendant’s order of March 23d not to release them to plaintiff. It also appears without dispute that there were only four firms in Los Angeles that baled newspapers, including defendant. Plaintiff immediately addressed letters to the other three asking their prices to fill the contract, and over defendant’s objection introduced in evidence two letters received in reply thereto. One such letter advised that the writer could not make deliveries in March, and the other, from Fireboard Products, Inc., agreed to do so, quoting a price of $27 per ton. Plaintiff was also permitted to testify that the third firm written to telephoned that it could not make delivery.