Lewis-Simas-Jones Co. v. C. Kee & Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendants’ motion for a new trial.

The appeal from the judgment not having been perfected within sixty days after notice of entry of judgment, rests npon the judgment-roll alone j and this being admittedly suf

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ficient to support the judgment it follows that the judgment must be affirmed.

Upon the appeal from the order denying a new trial the appellants urge that the evidence is not sufficient to support the findings of the court as to the delivery to, and receipt and acceptance by, the defendants of the goods for the purchase price of which this action is brought.

The proofs in this ease upon which the findings of the court are predicated are substantially these: The plaintiff was on March 18, 1912, the owner of three certain lots of potatoes which were stored in a public warehouse in San Francisco, and were there segregated and set apart in certain stalls and designated with certain identifying numbers and marks, and for which potatoes the warehouseman has issued to the plaintiff non-negotiable receipts, which were held by it at the time of the following transaction. Ón said day the defendant 0. Kee, who was doing business under the name of C. Kee & Co., came to the salesman of plaintiff with a request for the purchase of potatoes, whereupon he was taken by the latter to the warehouse, and shown the several lots of potatoes of the plaintiff there, of which he made a thorough examination in the presence of the agent of the plaintiff and the warehouse employees; after which offers and counter-offers were made, which resulted in the defendant Kee finally consenting to the price and agreeing to take the entire three lots of potatoes; whereupon three written orders were made out by the salesman of plaintiff, designating each of these three lots of potatoes by number of sacks, number of stall, and other identifying marks, and also stating the prices; which orders were directed to the warehouseman, signed by the name of the plaintiff with the initials of its salesman, and were then and there delivered to, received, and accepted, and carried away by said Kee. The potatoes were charged to the defendants’ account with the plaintiff in the usual manner. A day or two thereafter the defendant Kee came back to plaintiff’s salesman, and claimed that his partner was not satisfied with the potatoes, and that he did not want them, and he then tried to return the orders, which the salesman refused to receive, telling him that the potatoes had been sold and charged to him and that the seller could not take them back. The defendant Kee left the receipt upon a weigher’s desk in the office of the plaintiff and went away. There was no showing