Engelberg v. Sebastiani

SEAWELL, J.

On hearing after decision by the District Court of Appeal, First District, Division Two [273 Pac. 161]. Defendant, Sam Sebastiani, appealed from a judgment entered against him by the trial court in favor of plaintiff, Louis Engelberg, for the sum of $8,122.75. The jury brought in its verdict for the sum of $7,003.39, and the court, upon motion of plaintiff, directed the clerk of said court to add to the amount of the verdict interest at the rate of seven per cent per annum from the respective dates the several claims comprising the verdict became due to the date of the entry of judgment, and to enter judgment for the amount of said verdict plus interest thus computed. In accordance with the court’s direction the clerk entered judgment for $8,122.75, which included interest. The trial court had given no instruction to the jury regarding the plaintiff’s right to interest upon the demands in suit. The defendant contends that said court exceeded its power in directing an allowance of interest to plaintiff.

The action is upon a contract whereby plaintiff agreed to sell and defendant to buy the entire crop of grapes growing upon plaintiff’s ranch in Sonoma County at the price of $76 a ton. In the first count of the complaint plaintiff sued to recover $3,065.70, the balance of the purchase price remaining unpaid for 85 tons and 150 pounds of grapes actually delivered to and received by defendant. In counts two and three plaintiff sought to recover at the contract rate of $76 a ton for two lots of grapes tendered to defendant and which defendant refused to accept. Plaintiff alleged that he had sold said lots of grapes on defendant’s account, and from the sale of the first lot which defendant refused to accept he had realized $271.55, which he had paid to defendant. As to the

[729]

second lot, plaintiff alleged that the expenses of sale exceeded the proceeds by $26.05, and this sum he sought to recover in addition to the price of the grapes computed at $76 a ton.

The jury verdict of $7,003.39 for plaintiff was for the full amount prayed for, but made no allowance of interest, in regard to which the court had given no instruction. In the prayer of his complaint plaintiff asked for interest.

Upon the pleadings and proof, plaintiff was entitled to interest by virtue of the provisions of section 3287 of the Civil Code from the dates his right to receive the several sums sued for became vested in him. There is no merit in defendant’s.claim that plaintiff was not entitled to interest as a matter of law, for the reason that the recovery sought was not for sums certain or capable of being made certain by calculation. The price of the grapes was fixed by the contract and the amount that plaintiff should recover was capable of being made certain by calculation.