Marvin v. Eng-Skell Company

THE COURT.

This is an appeal by the defendant from a judgment in favor of plaintiff for $494.80, with interest and costs.

The action was brought for the recovery of damages for the breach of a written contract, under the terms of which the defendant agreed to sell and deliver to the plaintiff four reels of block tin pipe, each reel weighing five hundred pounds, at a price of fifty cents per pound, and which contract the defendant refused to carry out.

It appears that the day after the contract was entered into the defendant learned that the market price of block tin pipe had gone up from forty-five cents to sixty-eight cents per pound, which increase in price was due, according to the testimony of the defendant’s manager, to the European conflict then and now prevailing. This witness also testified

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that the defendant company was a small dealer in this article of merchandise; that it knew nothing of its sudden rise in price but that the plaintiff did; that when the plaintiff asked the price of such pipe and stated the quantity he required he was advised by the defendant to place the order directly with the Selby Smelting and Lead Company—which was at that time the only wholesale dealer in the commodity in California—and that plaintiff concealed Ms true reason for not purchasing from that company (which was that he would have to pay sixty-eight cents a pound therefor), and, with the purpose of misleading and deceiving the defendant, represented to defendant that he was not on friendly terms with the Selby Company and did not care to have any personal dealing with it.

Assuming that the evidence introduced by the defendant tended to sustain the allegations of the answer, that the contract was conceived in fraud and is therefore void, still we cannot reverse the judgment, were we ever so inclined, for the simple reason that there is an abundance of evidence in the record sustaining the findings of the court that no misrepresentation was made by the plaintiff to the defendant, and that there was no concealment or fraud practiced by the plaintiff upon the defendant. Furthermore, we are at a loss to see how the court could have made any other finding. The record discloses that on the fifth day of August, 1914, the plaintiff called at the place of business of the defendant and asked for a price on block tin pipe, stating also the quantity he desired. The clerk of the defendant was unable at that time to quote a price, and the plaintiff was requested to call again. He did so that afternoon and again on the next day, when the defendant quoted the price above stated and the agreement in writing was made. The plaintiff denied emphatically that he made any of the misrepresentations referred to. It also appears in the record that block tin was quoted in San Francisco at forty-five cents per pound the day the agreement was made. We conclude, therefore, that this first contention of the appellant is without merit.