Citrus Soap Co. v. Peet Bros. Mfg. Co.

[247]

CONREY, P. J.

Action to recover damages for breach of a contract for the sale of merchandise bought "by defendant from plaintiff. The plaintiff recovered judgment, from which judgment the defendant appeals.

Under date of November 7, 1918, plaintiff sold and agreed to deliver to the defendant, “Sellers usual good quality Soap lye Crude glycerine”; the quantity specified being eleven to twelve drums, weighing approximately eleven hundred pounds net each. The place of delivery was Berkeley, California. The goods were to be delivered “as made, but entire delivery to be completed prior to December 31, 1918.” Glycerine was made by plaintiff as a by-product in the manufacture of washing-powder.

The contingency of delay in performance of this contract was covered as follows: “This contract is made subject to suspension in case of fire, flood, explosion, strike or unavoidable accident to the machinery or the works of the producers or receivers of this material, or from any interference in plant by reason of which either buyers or sellers are prevented from producing, delivering or receiving the goods and in such event the delivery thus suspended is to be made after such disabilities have been removed; otherwise to be fulfilled in good faith. Notice, with full particulars and the probable term of the continuance of such disability, shall be given to the other party hereto, within ten days of the date of the occurrence of such disability.”

Under this contract the plaintiff delivered prior to De. eember 31st, three drums, which were accepted. The remaining nine drums were shipped by the plaintiff from San Diego as follows: Four drums shipped December 21st, arrived at Berkeley December 31st; three drums shipped December 28th, arrived at Berkeley January 2d; two drums shipped December 30th, arrived at Berkeley January 7th. Acceptance of these nine drums was refused. The damages awarded are the difference between the agreed price of thirty cents per pound and eleven cents per pound, the market value of the glycerine at the time of defendant’s refusal to accept and pay therefor.

The court found that the shipments were made and the dates of arrival at Berkeley were as above set forth; nevertheless, the court also found that “said goods were shipped and delivered in all respects in conformity with said con