Blumer v. Rauer

KNIGHT, J.

The defendant Frances Rauer appeals from a judgment rendered against her and in favor of plaintiff: A. H. Blnmer for the payment of the sum of $1,255.45 on account of the sale to defendant of three carloads of fertilizer weighing 139% tons. In her answer appellant ad

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mitted the delivery of 100 tons of said fertilizer but claimed that the same was not of the quality bargained for and that the weight in excess of one hundred tons represented the water, rice hulls, and sand with which said fertilizer was mixed. Appellant also pleaded that said sale was made by respondent in violation of the so-called Commercial Fertilizer Act. In a cross-complaint appellant alleged that respondent made representations preceding and at the time of the sale to the effect that the application of said fertilizer to the soil of appellant’s vineyard would double the crop of grapes to be grown thereon; whereas, as a matter of fact, instead of doubling said crop the tonnage of grapes grown during the year following fertilization decreased nearly one-half as compared with the crop grown the previous year. Appellant prayed for judgment against respondent for the sum of $2,420, as damages for loss of the anticipated grape crop and for the further sum of $350 to cover the freight and transportation charges of said fertilizer.

It appears from the evidence that at the time of said sale respondent was engaged in the business of selling manure from corrals and feeding-pens of J. P. Holland located in “Butchertown,” south of the city of San Francisco. Said corrals and pens were used for the purpose of fattening livestock for market, and rice hulls were used as a bedding to keep said livestock clean. During the latter part of December, 1920, appellant having heard of the quality of the fertilizer from the Holland corrals negotiated with respondent for the purchase of a quantity thereof to be used by her upon the soil of the vineyard belonging to her situate near San Martin, Santa Clara County. A written memorandum of agreement was prepared and signed on January 4, 1921, calling for 100 tons of “manure mixtures” at $8 a ton, to be delivered “as soon as advised” by appellant; shipments to be made two or three days apart. There is a conflict in the testimony regarding the quantity that was to be shipped. Bespondent claims he told appellant that 100 tons would amount to a two-carload shipment and that appellant also reserved the right to obtain a third carload at the same price. Appellant asserts that respondent stated that 100 tons would constitute a three-carload shipment and that she made no reservation for additional fertilizer. However that may be,