Agricultural Extension Club v. M. Hirsch & Son

[434]

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor for the sum of $323.95 and costs, for certain merchandise alleged to have been sold and delivered to the defendants.

The facts of the case are briefly these: The plaintiff is an unincorporated association of one hundred or more persons in the county of Nevada. In the month of April, 1917, this association, in aid of some charitable object, conceived the idea of commencing a campaign for the collection of folded newspapers and folded magazines throughout Nevada County, for which, when collected, it was understood a market existed in Sacramento. The president of the association wrote to a local junk dealer who had theretofore done some business for the defendants in that region, and asked him if he could handle the matter. He undertook to do so, and telephoned to the defendants at Sacramento, who, on April 5,1917, sent him the following telegram:

“T. Griffiths, Grass Valley, Cal.

“We authorize you to offer sixteen dollars and fifty cents per ton for - folded newspapers and twelve dollars and fifty cents per ton for folded magazines. These prices are f. o. b. Grass Valley. You can draw on us for the amount of the weight of these papers as per railroad weights.

“M. Hirsch & Son.”

Upon the receipt of this telegram the local junkman to whom it was directed assumed control of the shipment of the papers and magazines as the same were delivered to him at the depot in the town of Grass Valley, and were by him, as consignor, shipped to the defendants as consignees, the destination of the shipment being San Francisco. The defendants claimed and alleged in their amended answer, and offered to prove at the trial, that the said newspapers and magazines were not properly folded or bundled at their point of shipment, and hence arrived at their destination in an unmarketable condition, and on that account they refused to pay for the same, whereupon this action was begun.

Upon the trial the court found against the defendants upon their several defenses and in favor of the plaintiff for the amount of its claim.

The appellant’s first contention is that the court erred in not finding in the defendants’ favor upon the issue presented in