Hylton Flour Mills, Inc. v. Bowen

California Court of Appeal Jan 17, 1933 No. Docket No. 632.Published

Before: Jennings

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Holding. The court held that a contract for the sale of a definite quantity of goods is not void for uncertainty merely because the buyer has an option to select among several brands, and that an allegation that actual damages are difficult to ascertain is sufficient to survive a demurrer regarding liquidated damages.

Issues

Whether a contract for the sale of a definite quantity of flour is void for uncertainty because the buyer may choose between five different brands.
Whether a complaint alleging that actual damages were impracticable to fix is sufficient to withstand a demurrer based on Civil Code section 1670.

Disposition. reversed

Quotations verified verbatim against the opinion

“The discretion permitted the purchaser as to the quality or brand of flour to be selected by him did not introduce such an element of uncertainty as would invalidate the contract”

“Such an allegation is sufficient to bring the case within the exception provided by section 1671 of the Civil Code”

JENNINGS, J.

Plaintiff instituted this action to recover from defendant damages for the alleged breach of a written contract. Defendant interposed a demurrer, both general and special, to plaintiff's complaint. The demurrer was sustained without leave to amend and judgment was rendered in defendant’s favor. Plaintiff appeals from the judgment. It is conceded that the single question presented for consideration upon this appeal is the sufficiency of the complaint to withstand the attack presented by defendant’s general demurrer.

Two grounds were urged before the trial court in support of the demurrer to the complaint and are here urged by defendant in support of the judgment. These grounds are, first, that the contract for whose breach the action was brought is void for uncertainty and, second, that the complaint shows on its face that it seeks to recover liquidated damages expressly prohibited by section 1670 of the Civil Code.

The contract is pleaded

in haec verba

in the complaint. Omitting that portion of the instrument entitled “Conditions”, it is in the following language:

“Miller’s National Federation Uniform Sales Contract.

Contract No. (Adopted June 3, 1929)

Date Aug-17-29.

Hylton Flour Mills, Inc. Ogden, Utah

Sell (s) and E. A. Bowen buy (s) the following commodities (to be manufactured), on the terms and conditions stated below and on Back Hereof, f. o. b. cars to initial carrier at shipping point, freight (basis freight rate in effect date of sale), allowed to Corona Calif.

Time of shipment July 1st, 1930

Destination Track Corona.

Terms of payment Arrival draft with bill of lading attached, through First National Bank

Bank of Corona

[713]

Routing Mill option

Hylton Flour Mills, Inc. v. Bowen

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JENNINGS, J.

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