Yoshizumi v. Platt Produce Company

ELLISON, P. J.,

pro

tem.

The complaint alleges that on August 11, 1917, plaintiff and defendant entered into a contract in writing whereby plaintiff agreed to sell and defendant agreed to buy 540 sacks of potatoes, at the agreed price of three dollars per sack, of 116 pounds each, and

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that said product should be delivered, starting at the last of the ensuing week, f. o. b., boat, at McDowell Camp, No. 23%, San Joaquin County.

It was further agreed that delivery of said product on board of boat would constitute full and complete acceptance thereof; that plaintiff duly performed all the conditions of said contract and started to deliver said product on the last of the ensuing week, and on August 27, 1917, 540 sacks of said product were on the river bank at said camp, ready for. inspection and transportation by the defendant by means of water craft; that it is the definite, well-known, and uniform custom and usage of the purchasers of potatoes in the vicinity of Stockton and on points located on the San Joaquin Eiver and its tributaries to inspect the product while on the bank, and to send water craft to such point to take delivery thereof; that plaintiff notified defendant on August 27, 1917, that said product was on the bank and defendant thereupon, and again on August 31, 1917, assured plaintiff it would send a barge to obtain delivery thereof; that defendant failed to do so prior to September 3, 1917, and on that day plaintiff demanded that defendant take delivery of said produce, and notified defendant that in default thereof plaintiff would sell the same to defendant’s account to the best advantage; that on September 3, 1917, a barge belonging to one E. H. Yehmeyer called at said camp, and the agent thereof took possession of said product, loaded it on said barge, and transported it to a warehouse at Stockton; that said Yehmeyer thereupon notified defendant thereof and defendant instructed him not to enter said product in said warehouse in its name; that thereupon plaintiff sold said product for $1.90 per sack, or for the sum of $1,026, to his damage in the sum of $594, for which amount he prayed judgment.

The court found that plaintiff had performed all of the conditions of said contract on his part to be performed and started to deliver said product at the last of the ensuing week, as therein provided, and on August 22, 1917, said 540 sacks of potatoes were on. the river bank at said camp, ready for transportation by the defendant.