De Brito v. San Diego Packing Co.

THOMPSON (V. N.), J.,

pro

tem.

This action was brought by plaintiffs and appellants against defendant and respondent for the purpose of recovering the amounts of certain payments totaling $4,067.21 claimed by them to have been made only as “deposits” upon the total purchase price of $12,000, in pursuance of the terms of a written contract for the purchase of a certain fishing boat named “Shina No. 2”. Upon the execution of the contract, July 21, 1928, possession of the boat was delivered to appellants. The complaint in effect purports to set forth a rescission of the contract, and a right to recover the amounts of said payments on that ground, and also upon the ground that respondent wrongfully retook said boat and resold it at a time when appellants were not in default under the terms of the contract; that by reason thereof appellants were entitled to a return of the money paid by them, together with interest thereon from November 1, 1928, at the rate of seven per cent per annum. A copy of the contract is attached to the complaint, referred to and marked exhibit “A”.

Title to the boat remained in the respondent until the full sum of $12,000 was “ . . . deposited with it as and for the purchase price”.

Respondent in its answer admits the making of the contract, as well as the making of the initial payment of $3,000 by appellants upon the execution of the contract, the delivery of possession of the boat to appellants and further credits amounting to $1,067.21 made upon the purchase price. Respondent contends that all the payments which were made were actually payments upon the purchase price, rather than simply “deposits”, as contended by appellants. This contention is brought about between the parties because of the peculiar phraseology used in the

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written contract, referring to the payments as “deposits” to be applied upon the purchase price.

Respondent also contends that appellants, after using the fishing boat commercially for approximately six months, returned it to respondent’s wharf in San Diego Bay and there abandoned it in a dilapidated condition, with bills and maritime liens against it, without having paid current and past due taxes and insurance upon it as required by the contract, necessitating respondent, for its own protection, retaking possession of the boat, having it repaired, paying the costs thereof, as well as bills, liens and insurance standing against it; that such abandonment constituted a repudiation of the contract, entitling respondent to resell the boat to third persons, which it did in July, 1929. Respondent further sets up a counterclaim to recover from appellants interest on the deferred portion of the contract price as provided in the contract, moneys expended by it as above outlined, and also a claim for the reasonable value of the use of the boat for the period during which it was used by appellants.