Montgomery v. Thomson

McFARLAND, J.

This is an action to recover $2620.80 and interest for an alleged balance due plaintiff from defendant for the sale by the former to the latter of a certain amount of cords of brush to be used by defendant in certain levee work at Sherman.Island. The case was tried without a jury, and the court made findings and rendered judgment as prayed for in the complaint. From the judgment and from an order denying his motion for a new trial defendant appeals.

On September 12, 1901, a written contract was executed between plaintiff as party of the first part and defendant as party of the second part. The contract provided: ‘ ‘ That the party of the first part agrees to furnish and deliver seventeen hundred cords of brush at the Sherman Break within thirty days from the date of this instrument, barring a flood, and further agrees to use all due diligence to furnish and deliver as much more as he can until stopped by floods or by notice from party of the second part. It is distinctly understood that the brush will be landed on the bank of the Sacramento River in ample time to be delivered to Sherman, provided he can get the barges to load it on. The party of the second part agrees to pay or cause to be paid to the party of the first part $3.90 per cubic cord for each and every cord delivered at Sherman Island in the following manner on the 5th day of each month $3.50 for every cord delivered in the previous month. The forty cents per cord retained to be paid five days after the final delivery. All of the above mentioned brush to make into facines as per attached specifications.” The contract then provides for the kind of brush to be used and the manner of its preparation. The brush was to be procured by plaintiff in Yolo County and shipped on barges down the river to Sherman Island, and received there and unloaded by defendant and the barges returned. The plaintiff shipped the first seventeen hundred cords, and also some other brush, which was all received by defendant and paid for. The controversy' here is only about the last shipment of six hundred and seventy-two cords

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on the barge Nevada. Defendant contends that he ended the contract by notice given plaintiff before the shipment of this last lot of brush; and the main question in the case is whether this contention is maintainable.

On November 13, 1901, defendant wrote to plaintiff as