Manfre v. Sharp

SHENK, J.

This is an appeal from a judgment in favor of the plaintiff in the sum of $2,365.50.

The action is one to recover damages for an alleged breach by the seller of a contract for the purchase and sale of flour. It appears that in July, 1924, the defendant, appellant herein, entered into a contract with one Voight for the sale to the latter of a specified quantity of flour, the same to be delivered weekly over a period of time extending into 1925. This contract contemplated the extension of credit to Voight. Voight was then engaged in the bakery business in Stockton under the fictitious name of Snow White Bakery. On October 31, 1924, he sold the bakery business to his foreman, Manfre, the plaintiff and respondent herein, and assigned to Manfre all of his right, title and interest in and to the contract with the defendant. On December 15, 1924, Voight mailed a letter to the defendant which the defendant claims and the court finds was not received by- him until December 20, 1924, informing the defendant that he had sold the business to the plaintiff. In this letter Voight stated, among other things, that he would “no longer be responsible for any bills which may be contracted hereafter, and any business done by you will be with Mr. Manfre direct.” On December 20, 1924, the defendant replied to this letter acknowledging its receipt, but in no way mentioning that part of the letter dealing with the release of Voight. On December 31, 1924, the defendant wrote to the plaintiff, stating that certain moneys were due and likewise stating that they “must insist upon your living up to the terms of the contract, as booked, and on which you are at the present time in arrears.” Finally the defendant refused to deliver more flour unless the plaintiff pay cash therefor, the price of flour having risen considerably in the meantime. As a result the plaintiff purchased flour in the open market and brought this action for the damages thus sustained. It was stipulated at the trial that if the plaintiff was entitled to any damages that sum should be $2,365.50. It was likewise stipulated, or admitted by express statement of counsel and found by the trial court, that neither the plaintiff nor Voight were in

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default in taking deliveries or in the making of payments under the contract. The case was tried before the court without a jury.