Drown v. Haddock

WORKS, J.

Defendant purchased from plaintiff, under a written conditional sale contract, “1 Admiral Play Press with 8 H. P. International Harvester Engine attached, and one pair of small platform scales.” These articles were to have been paid for, at a date fixed in the contract, by a certain lump sum, with interest and attorney's fees. Payment not having been made upon the day designated, plaintiff commenced this action to recover the amount due. He had judgment and defendant appeals.

The sole point argued by appellant is that there was a “lack or failure of consideration” for the contract between the parties. Although the agreement listed the articles described in it as we have listed them above, appellant refers to them in his brief, collectively, as a “hay-baling outfit.” Treating the subject of the sale as a single thing, that is, as a hay-baling outfit, appellant contends that the transfer was without consideration for the reason that several witnesses testified that the three articles actually listed in the contract of sale would not work as a hay-baler and that parts of the machinery broke down when the attempt was made to use them for that purpose. Appellant’s view is that this testimony shows that the hay-baling outfit was worthless. We are pointed to nothing in the record to show that the articles were to be sold as, or that it was understood between the parties that they were together to be used as, a hay-baling outfit. Neither are we shown that each of the three articles had not an intrinsic value, either great or small, of its own. The articles may have been of considerable value, when taken all together, even though some parts of one or two of them may have broken down when they were subjected to the use to which appellant assumed to put them. These considerations render inappli

[656]

cable the cases of

Waltz

v.

Silveria, 25

Cal. App. 717 [145 Pac. 169], and

Stanton

v.

Weldy,

19 Cal. App. 374 [126 Pac. 175]. In truth, we cannot perceive that either of these cases has any bearing whatever upon the point now under discussion, although appellant seeks to apply them to it.