Frisbie v. Rosenberg Bros. & Co.

BURNETT, J.

The action is for damages for defendant’s refusal to comply with its agreement to pay for certain dried fruit sold to it by plaintiff.

On September 4, 1906, the parties entered into a written contract providing that “Rosenberg Bros. & Co. have this day bought of S. H. Frisbie and said seller has this day sold to said buyer the entire crop of pears estimated at fifteen tons now growing and grown on the orchard situate—Anderson—■ of which orchard- is the owner and of which said crop seller declares that he is the owner and represents that he is duly authorized to sell the whole thereof.

“Prices and seller’s estimate of quantity as follows, to wit:

“About 15 tons Pears @ 8c per lb. . . .

“It is expressly understood and agreed that buyer is not obliged to accept fruit in excess of amount approximated above by more than ten per cent, but may do so at his own option.

‘ ‘ Seller hereby agrees to cure said entire crop properly and to have said entire crop ready for delivery and to deliver the same at Anderson. . . .

‘ ‘ Seller hereby guarantees that all of the fruit hereinabove specified shall be choice, well cured, original condition, and free from damage. . . .

“Buyer hereby agrees to pay for said fruit upon completion of delivery.”

Plaintiff claims to have performed all of the conditions required of him by said contract and on October 10th to have

[640]

notified defendant that he was ready and desired forthwith to deliver 33,000 pounds of cured pears under said contract. Defendant refused to accept any part of them, and plaintiff held them subject to defendant’s order till October 25th. It is alleged “that at said time the said dried pears were losing weight through shrinkage and additional costs of insurance and keeping the same were necessarily being incurred.” It is further alleged that plaintiff sold them on October 25th for six cents per pound, the highest market price obtainable, and that he was damaged by defendant’s refusal to carry out its contract in the sum of $925. Plaintiff recovered judgment in the sum of $921.