City of Pasadena v. Estrin

THE COURT.

Both parties appeal from a judgment in favor of the plaintiff in the sum of $1884.83, on account of á quantity of seed potatoes sold and delivered by the plaintiff to the ■ defendants.

In the year 1925 and for some time prior thereto the City of Pasadena, a municipal corporation operating under a freeholders’ charter, owned a large tract of land outside its corporate limits, which tract was known as the “Pasadena City Farm”. One B. C. Bougher, as superintendent, conducted the agricultural operations on the farm and in many, instances carried on preliminary negotiations for the sale of the produce. On January 6, 1925, Bougher and the defendants signed the following instrument:

“January 6, 1925.

"“We, the Liberty Produce Company agree to buy and the Pasadena City Farm agrees to sell up to and including 2000 sacks of No. 1 seed potatoes for a price of $2.25 per hu'ndred pounds F. O. B. the Pasadena Farm. This seed to be delivered as dug during the latter part of January 1925 providing the weather permits digging.

" Terms: cash on demand. A deposit" of $450.00 is hereby delivered and accepted as a guarantee of acceptance of this contract.

“Signed N. Estrin

“A Karl.

“Pasadena City Farms,

“Alhambra, California

“By B. C. Bougher — Supt.”

No other or further contract was drawn. Pursuant to this instrument there were delivered to the defendants 103,770 pounds of potatoes, which at the price of $2.25 per hundred pounds named in this memorandum would amount in value to $2,334.83, and, deducting the $450 cash payment, would leave a balance unpaid of the amount of the judgment. The city brought suit setting forth two counts in the complaint. In the first count the execution of the instrument, the payment of the $450, and the balance due

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of $1884.83 were alleged, followed by a prayer for payment of the balance due. In the second count the plaintiff sought to recover the market value of the potatoes, alleged to be the sum of $3,891.67, or at the rate of $3.75 per hundred pounds. The defendants answered, admitting and alleging the execution of the foregoing paper, admitting the advance payment of $450, admitting the delivery to them of 103,770 pounds of potatoes, but denied any indebtedness to the plaintiff in excess of $135.83. It is then alleged that after the 103,770 pounds of potatoes had been delivered, and on January 31, 1925, said Bougher repudiated the contract and refused to deliver any more of the produce; that the market value of the potatoes at that time was $3'75 per hundred pounds; that by reason of such repudiation and refusal to deliver the defendants had been damaged in the sum of $1749, which amount was the difference between the sale price specified in the memorandum and the market value of the undelivered potatoes; and the defendants prayed that the amount of their alleged damage be set off against the amount admittedly owing to the plaintiff.