Pool v. Phoenix Refining & Manufacturing Co.

JAMES, J.

This appeal was taken by the defendant from a judgment and is presented upon the judgment-roll alone. To the complaint of plaintiff defendant interposed a demurrer, setting forth as a ground thereof that said complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant answered, after

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which the cause went to trial. On this appeal the question to be considered is as to whether the trial court was right in overruling the demurrer of defendant to the complaint of plaintiff.

Plaintiff acquired title to a claim of the Union Hardware and Metal Company, by assignment thereof, upon which he brought suit demanding judgment in the sum of $485.52, which the trial court awarded to him, together with interest and costs. The facts which constituted the alleged cause of action were, in substance, as follows: In June, 1908, defendant ordered from the Union Hardware and Metal Company a carload of merchandise, consisting of steel sheets, which was to be shipped by the vendor from its factory at Steubenville, Ohio, to defendant at Bakersfield, California; defendant agreed, upon the receipt of the merchandise at the city of Bakersfield, to pay the amount of the agreed purchase price, being the sum of $1,761.81, together with freight charges which might be made on account of the shipment. The merchandise was shipped and arrived at the city of Bakersfield in August, 1908. The defendant, notwithstanding it had notice of the arrival thereof, failed and refused

to

pay the freight charges, or to receive the merchandise, and the same remained in charge of the railroad company for the period of seventy-six days at that point. Thereafter, the Union Hardware and Metal Company paid the charges which had accrued, both those made for the transportation of the merchandise and demurrage accruing during the seventy-six days that the ear was at the city of Bakersfield. The merchandise was then forwarded to the Union Hardware Company’s warehouse in the city of Los Angeles. It was alleged further in the complaint that the freight rates and charges from the city of Steubenville, Ohio, to the city of Bakersfield were $204.76 in excess of freight rates which would have been charged had the shipment come directly from the city of Steubenville to the city of Los Angeles; that, further, the Union Hardware and Metal Company was obliged to pay additional freight charges of $204.76 for the transportation of the freight from the city of Bakersfield to the city of Los Angeles, making a total, including interest on the amounts mentioned, of $485.52. This action was in form an action for damages arising upon breach of contract of a vendee to receive and- pay for-personal