Art Metal Constr. Co. v. A. F. Anderson Co.

LAWLOR, J.

This appeal is taken from a judgment entered in favor of the plaintiff and against the defendant in

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the total sum of $2,091.63, with interest thereon, and for the possession of certain personal property, or for its value— $564.39—in case a delivery thereof cannot be had.

The action was brought by the plaintiff upon a written contract executed by the parties to this action on March 6, 1913. Under the terms of the contract the defendant agreed to sell the banking equipment and furnishings manufactured by the plaintiff in certain counties in the southern part of the state. Provision was made in the contract whereby either party might, upon giving sixty days’ notice, terminate the contract, and upon such termination by either party the plaintiff would accept, take back, and pay the purchase price thereof, all goods and merchandise remaining in defendant’s possession previously purchased by it from plaintiff which should be in good and serviceable condition at the time of the termination of the contract. The court found that the cofitract was terminated on August 26, 1915, the plaintiff having served notice of such termination on June 26, 1915.

The complaint, after alleging the corporate existence of the plaintiff “under and by virtue of the laws of the state of Massachusetts, ’ ’ and that it was ‘ ‘ duly authorized under and by virtue of the laws of the state of California to transact business in this state,” alleges that on or about May 12, 1915, the defendant in writing requested the plaintiff to furnish the defendant f. o. b. cars at Jamestown, New York, certain office and banking fixtures, furnishings, and equipment, to be used in the alteration and' repair of the banking establishment of the Commercial Bank of Santa Barbara; that the defendant agreed to pay for these goods the sum of $3,995.01; that of this total amount the sum of $1,462.01. had been paid and that there was still due and unpaid to the plaintiff the sum of $2,533.

The defendant filed an amended answer to the complaint as amended in which it denied the indebtedness as alleged in the complaint and claimed that it had paid the plaintiff in cash'the sum of $1,629.05, and that it had on hand goods and , merchandise, which it had bought from the plaintiff, and which the plaintiff was bound under the terms of the contract of March 6, 1913, to take back, of the value of $2,990.54, and alleged further that the defendant was ready and willing to return these goods to the plaintiff and that the plaintiff had been so notified. The amended answer then alleged' that there