Reed v. McDonald

JAMES, J.

This litigation has for its origin a dispute which arose out of a written contract for the sale of a lot of haled hay. The cause of action accrued in the year 1900 and is therefore now of well seasoned age. During the year •mentioned the defendant was the owner of a large stack of baled hay located at Bakersfield which plaintiffs were desirous of purchasing. The parties having agreed upon the price of $8.75 per ton, the next question to be settled was as to the amount of hay contained in the stack. This amount was finally estimated to be six hundred and fifty tons. A written agreement was thereupon executed which provided that, based upon such estimated tonnage, the plaintiffs should pay $2,645 on February 20, 1900, and the balance of $3,042.50 on September 1, 1900. It was not agreed that the estimated tonnage should be taken as the basis for a final accounting, but to cover that matter the following clause was included in the written agreement: “The approximate tonnage to be accepted by both parties, until the parties shall move the said hay, at which time the portion of same shall be weighed, and balance of stack counted in bales, and average of same be taken to the satisfaction of both parties. And overplus from above said figures 650 tons shall be paid for by the parties of the second part at aforesaid rate $8.75 per ton, and any shortage of aforesaid figures 650 tons, shall be refunded at same rate.” The cash payments hereinbefore referred to were made at about the time specified, but the hay was not all removed from the stack by the plaintiffs, or under their direction, until about January of the year 1901. After the hay had all been removed, plaintiffs claimed that there was a shortage of approximately one hundred tons and demanded a refund therefor under the term of the contract covering

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such contingency. The demand was refused and this action followed, which resulted in a judgment in favor of plaintiffs. The trial court found that there was a shortage of ninety-one tons, 856.80 pounds, and gave judgment for that amount at the contract price of $8.75 per ton with interest. Defendant appealed from the judgment and from an order denying his motion for a new trial.

The evidence showed without dispute that when the plaintiffs first, began to remove hay from the stack a quantity of it was weighed and these weights were compared with the balers’ tag weights which were attached to each bale. It being found that these tag weights corresponded very closely with the actual scale weights then made, plaintiffs and defendant agreed to use the tag weights in ascertaining the total tonnage received by the former. This method of establishing the weight of the hay continued until plaintiffs had removed about three hundred and seven tons. At that time plaintiffs had, through some arrangement with a man named De Groot, agreed to let De Groot have the remainder of the hay, and De Groot had arranged with one Loveland to remove the hay from the stack and make shipment of it. Thereupon one of the plaintiffs called upon defendant and stated, so he testified, that De Groot had acquired ownership of the hay and that he desired Loveland to remove it. This plaintiff testified that defendant then agreed that Loveland might remove the hay and that he (defendant) would accept car weights from Loveland as proof of the quantity removed. Defendant denied that he ever agreed to accept car weights or any weights from Loveland, although it appears that he did accept such weight returns from Loveland for a time. All parties agree that before Loveland had taken away all of the hay defendant did notify him that he would not accept his weights any further. Loveland continued to remove the hay until it had all been disposed of. Loveland did not ship all of the hay which he removed, and therefore did not receive car weights for all of it, but he testified that the total amount which he removed was one hundred and sixty-four tons, four hundred and thirty-nine pounds, and that of this amount he shipped one hundred and forty-one tons, one thousand and six hundred pounds, and sold the remainder at different places in Bakersfield. There was some loose and