Tibbals Oakum Co. v. Meigs

COOPER, P. J.

action was brought to recover from defendant the balance due for 520 bales of oakum sold and delivered by the plaintiff to defendant at his request. The case was tried before the court, and findings filed, on which judgment was entered in favor of the plaintiff for $632.55, with costs. This appeal is from the judgment on the judgment-roll without a bill of exceptions.

It is claimed that the judgment is not the legal conclusion from the facts found. The defendant pleaded by way of defense that there was a warranty made by the plaintiff as to the quality of the oakum, and that by reason of a breach of said- warranty he suffered loss in net profits on the sale of the oakum and other damages in the sum of $574.08, and he asks that this sum be allowed and deducted from the amount that might be found due the plaintiff.

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The court found that the sale was made with a warranty, and further found as follows:

“VI. That all said oakum sold and delivered as aforesaid was in bad condition at the time of sale, due to the poor workmanship exercised in its manufacture, and to the further fact that said oakum consisted of extremely short fibers, and could not be sold for the high price it would otherwise have sold for, if the same had been of the grade and quality and in the condition warranted by plaintiff; that defendant sold said 520 bales of oakum delivered as aforesaid for, and received for the same, the sum of $1,332.57; that the value of said 520 bales of oakum was, at the time of the delivery thereof to defendant, at said city and county of San Francisco said sum of $1,332.57; that the excess of the value which said 520 bales of oakum would have had at the time to which the warranty of plaintiff referred, if it had been complied with over their actual cash value at that time was and is the sum of $116.86.

“VII. That by reason of the poor grade and quality and the condition of said oakum, defendant has suffered loss in net profits in the sale of said oakum, premiums, cartage, storage and freight in the sum of $578.08, no part of which has been paid.

“VIII. That, subsequent to the sale of said oakum by plaintiff to defendant as aforesaid, said defendant paid to plaintiff, on account of the purchase price of said oakum the sum of $700, but refused to pay any additional sum because of the poor grade and quality and bad condition of said oakum.”