Scudders-Gale Grocery Co. v. Gregory Fruit Co.

ALLEN, P. J.

Appeal by plaintiff upon a bill of exceptions from a judgment rendered in the superior court of San Bernardino county in favor of defendant.

Plaintiff corporation, doing business at St. Louis, Missouri, claims to have made a contract with defendant corporation, doing business at Colton, California, for the purchase of certain peaches, and that on account of defendant’s default in delivery thereof damage resulted, for which it demands judgment. The principal question involved upon this appeal relates to the sufficiency of the evidence to support the finding of the trial court that the defendant did not enter into the agreement as alleged by plaintiff. There is evidence in the record tending to show that one Evans was authorized by defendant to quote prices of peaches to plaintiff, which he did at St. Louis, Missouri, on or about May 18, 1905. These prices quoted were not acceptable to plaintiff, and it submitted to Evans a counter-proposition at a lower figure, which counter-proposition Evans wired to defendant, and was in the wbrds following: “Seudder offers for delivery Sept. 10, f. o. b. common point, 400 50-lb. boxes choice yellow peaches 5%c. 400 50-lb. boxes choice peaches, Muirs, slightly processed, 5%c. Brokers here offering same. ’ ’ Defendant upon receipt of such counter-proposition wired Evans as follows: “Regarding your wire 17, confirm, Seudder, subject approval sample time shipment.” And on the day following wrote Evans as follows: “Per our wire of the 17th, we have confirmed on following order: Scudder-Gale Grocery Co. 400 50-lb. boxes choice yellow peaches, 50 lb. boxes 5%e. 400 50-lb. boxes choice Muir peaches, 50-lb. boxes, 5%c. Slightly processed shipment by

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Sept. 10th. Subject approval sample time shipment. We will get car out as specified upon approval sample.”

This letter Evans showed to plaintiff’s president, who requested permission to retain it, saying “we will keep this as a sale ticket,” Evans replying that he had no objection to the plaintiff retaining possession of the letter, and further said: “I would like to have you take the matter up with the Gregory Fruit Company—any further negotiation with regard to this matter—as I myself will not be here.” Plaintiff did not communicate further with defendant in regard to the transaction until September 13th, when it wrote defendant asking that the samples be sent to St. Louis. This was followed by other communications in which plaintiff claimed the contract was completed and demanded shipment. Defendant made no reply to these letters. On October 7th plaintiff purchased peaches of the kind and character specified in the proposition in the open market and was required to pay therefor an advanced price.