Minaker v. California Canneries Co.

GRAY, C.

This action was brought to recover $646.90, for fruit sold and delivered by plaintiffs to defendant.

The defendant, in a cross-complaint, set up a claim for damages in the sum of $1,735.64 on account of plaintiffs’ failure to deliver fruit in accordance with their contract. The plaintiffs had judgment for the amount claimed by them, and the defendant appeals from said judgment and from an order denying a new trial.

From the arguments contained in appellant’s brief, we infer that it intends to attack the judgment of the court on the ground that the same is not supported by the findings.

[240]

By a written, contract, the plaintiffs agreed to sell, and the defendant agreed to buy, one hundred and fifty tons of Bartlett pears from Alameda County during the season of 1898, the same to be delivered at San Francisco, at the rate of $22.50 per ton. Nothing was stipulated as to the date or dates of delivery further than above set forth, and nothing was mentioned in the contract as to the date or dates of payment. It was proved upon the trial that during the year 1898 there was a custom among dealers in fruits, regulating the time when payments were to be made by buyers, in the absence of any express provision on that subject in their contract. This custom was to pay on the 15th and 30th-of each month, unless these dates came on Saturday, and then to pay on the following Monday. Further, by said custom, it was understood between the buyer and seller that the fruit was to be delivered in such quantities as the same might become marketable by maturity, and be paid for on delivery, and that by the general custom payment on delivery meant payment twice a month on steamer days, the 15th and 30th of each month. The finding of the court was in accordance with this evidence, and the court further found:—

“That said general custom was well known to each of the contracting parties in this suit, and it was the intention of said parties in executing said contract of May 18, 1898, that said custom should be, and said custom did, form an element of, and was a portion of, said contract.”

It appears that the season of pear harvest and of their coming into market for the year 1898 extended from July 10th to September 25th. Between the 1st and 16th of August plaintiffs delivered to defendant 82^ tons of pears. Defendant made cash payments on August 8th, 15th, and 19th, and on August 2-3d there was yet unpaid, on account of the pears delivered prior to August 16th, the sum of $646.90, being the amount sued for; On said August 23d defendant wrote a letter to plaintiffs in which it was stated that defendant had “deposited with the Anglo-Californian Bank a certified check for the balance due as per your statement. This certified check is subject to your order on completion of the contract, and as to future delivery of pears, we are willing to pay you spot cash for them, as fast as delivered and before taken away from the docks. If you will call on Mr. Cooper,