Martin v. Markarian and Company (1905) · DecisionDepot

Martin v. Markarian and Company

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Oct 2, 1905 No. No. 24.Published

Before: Buckles

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Holding. The court affirmed the order granting a new trial because the record showed a substantial conflict in the evidence, and the trial court's stated reasons for granting the motion did not limit the appellate court's review of the entire record.

Issues

Whether an order granting a new trial should be set aside when there is a substantial conflict in the evidence.
Whether a trial court can limit the grounds for a new trial by stating in its opinion that the motion is granted on one ground only.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the order granting a new trial will not be set aside when there is a substantial conflict in the evidence, the order should not be disturbed.”

“the court below cannot by stating in its order (and, we may add, or in its opinion) that the motion is granted upon one ground only, and denied upon the others, deprive the other party of the right to a review by this court of the entire record.”

Synopsis

Appeal — Order Granting New Trial — Conflicting Evidence.— Where one of the grounds of the motion for a new trial was insufficiency of the evidence to justify the verdict, and the evidence is substantially conflicting, an order granting a new trial will not be set aside.

Id.—Bevibw of Order—Ground Expressed—Appellate Court not Limited.—In reviewing the order granting a new trial this court is not limited to the ground expressed by the trial judge; but the order will be sustained upon any tenable ground assigned.

BUCKLES, J.

This is an action to recover the price of figs sold and delivered on August 19, 1903. The parties entered into the following written contract:—

[688]

“This certifies that Peter Martin has sold to Markarian & Company and Markarian & Company has bought all the White Adriatic Figs produced during the year 1903, on Gordon, Patterson, Grant Orchard Farm, F. Travers, Sanger, Gardenie, Harrison, C. Liman, Starwalt, and Beasley places, and estimated to be 100 tons.

“The seller, as a condition of sale, warrants all said fruit well cured and merchantable, and free from unmatured fruit, and agrees that he will deliver said fruit to buyer at their packing house in Fresno, as fast as cured, said delivery to commence on or before Aug. 22d, 1903, and all fruit to be delivered by Nov. 1st, 1903. Until delivery is made, seller waives payment of purchase price, and assumes all risk of injury to or loss of said fruit.

“The buyer agrees to pay in cash at delivery for all figs delivered of quality and condition as above, and in lots as received,

3½

cents per pound and 50c per ton for hauling.

“This is intended to be and is an absolute sale, and title to said fruit has passed to buyer subject to foregoing conditions.

"Witness to mark and sig- his nature of Peter Martin, “Seller Peter-Martin

“H. H. Welsh mark.

“Markarian & Company,

“Dated Aug. 19, 1903. “Per H. Markarian.

“Witness, W. C. Nixon.”

Some of the figs were then growing upon the trees. There is some confusion in the pleadings as to the amount of these dried figs which were delivered. The complaint alleges there were 71.1015 tons delivered and claims as a balance due the sum of $435.91, while the answer denies that plaintiff delivered 66 1-6 tons of figs or any other number of tons or greater amount than 65 97-250 tons and denies that there remains due and unpaid plaintiff the sum of $437.50 or any other sum.

Martin v. Markarian and Company

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Synopsis

BUCKLES, J.

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