WM. Knapp & Co. v. San Joaquin Cigar Co.
Before: Kerrigan
Synopsis
Action for Breach of Contract—Lithographed Cigar Bands and Labels—Manufactured in Germany—Designs Agreed—Sample Proof not Required—Support of Finding.—In an action for damages for a breach of contract between plaintiff, a lithographing company, and defendant, a cigar company, to furnish a large number of cigar bands and labels for defendant cigar company of specific colors and designs, then shown by sample, with the picture of defendant, then president, in the center thereof, which were to be manufactured in Germany, and to be delivered in five equal installments. to be paid for on delivery, and after delivery of the first installment, after change of presidents, sueh installment was not paid for, and the contract was repudiated, and defendant pleaded that a sample proof was to be furnished, and the testimony for the plaintiff was uneontradieted that the contract contained no provision for a sample proof, and that labels were always furnished in the way shown, the court was justified in finding that the contract did not provide for a sample proof.
Id.-—Sufficiency of Complaint—Refusal to Accept First Installment—All Goods Manufactured.—When the complaint alleges that all of the bands and labels ordered were manufactured, and that defendant absolutely refused to accept or to pay for the first installment, sueh refusal may be deemed a repudiation of the entire contract, and authorized the plaintiff to sue, not merely for damages for breach as to the first installment, but for a breach of the entire contract.
Id.—Testimony as to Manufacture not Stricken Out—Reserved Ruling not Passed upon—Weight Considered.—Testimony admitted at the trial to show that the last two installments of the bands and labels had been manufactured, conceding it to be inadmissible, as presented, the court having reserved a ruling upon an objection thereto, and having failed to rule thereupon, remains in the record, and being of some weight is entitled to be considered. Id.-—Finding not Assailed—Manufactured According to Contract— Untenable Objections.—When the defendant has failed to specify the insufficiency of the evidence to justify a finding that the bands and labels were manufactured in conformity to the contract, his objection that the evidence does not so show cannot be considered.
KERRIGAN, J.
Plaintiff recovered judgment, from which defendant appeals, the appeal being taken within sixty days after the entry of judgment.
On December 13, 1906, the defendant was engaged in the manufacture of cigars in the city of Fresno, and the plaintiff was in the lithograph business in San Francisco. On that date the defendant, through H. E. Mootz, gave the plaintiff
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an order for the manufacture of a large number of cigar bands and labels of certain designs and colors, with the picture of the head of Mootz in the center of said bands. The plaintiff -exhibited to Mootz at that time a sample of the labels that it manufactured. They were to be manufactured in Germany,- and, according to the contract, to be delivered to the defendant in five equal installments at specified times, each installment to be paid for when delivered. June 16, 1907, the first installment of labels and bands was forwarded to Fresne through the postoffice. Frederick Knobloch (who had meanwhile succeeded Mootz as president of the defendant company) refused to accept the goods, placing his refusal upon the ■ground that plaintiff had agreed to submit to defendant before manufacturing said goods a sample thereof for approval, and that no such sample or proof had been submitted. In addition to these facts the complaint alleges that the goods manufactured are of a special design, and of no value to any person other than the defendant, and that by reason of the refusal •of defendant to accept delivery of said goods and to pay therefor, the plaintiff has been damaged in an amount equal to the ■contract price of the five installments less certain expenses of shipment and custom duties.
The defendant does not contend that the goods were not delivered at the proper time, or at the agreed price, or in the stipulated quantity, nor indeed that they were not according to sample. Its sole contention in this connection appears to be that the parties to this action agreed that a proof of the labels and bands was to be submitted to the defendant for inspection before the manufacture thereof. To support this contention Knobloch testified that Mootz, the former president ■of the company, in the presence of the attorney for the plaintiff, at a named conversation, said that he (Mootz) had not waived an opportunity to look at the bands. Mootz was not called as a witness, and Knobloch’s testimony in this regard was contradicted. On the other hand, Fricke, a director of the corporation plaintiff, testified: “The written orders embraced the whole of the agreement that I had with Mootz at that time. They did not provide for, nor was there any understanding between Mootz and me in regard to, anything else being done by me before the goods were delivered. There was nothing said or done in regard to furnishing proof. I
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