Biglione v. Bronge

SEA WELL, J.

This appeal is taken from the judgment-roll alone. The action is based upon the refusal of appellant to make the third and final payment on the purchase price of a crop of grapes as provided by the terms of the following contract entered into between the appellant and respondent:

“Fresno, Cal., July 23, 1921.

“For and in consideration of the sum of One Dollar ($1.00) each to the other paid, receipt of which is hereby

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acknowledged, C. Biglione has this day sold and A. Bronge has this day bought the entire crop of Malagas, Muscats and black grapes, same to be clean, free of mildew and fungi diseases now growing on the ranch of C. Biglione, situated Scandinavian Col., Fresno Co., consisting of 55 acres, more or less, the crop estimated as 130 tons.

“Above grapes to be picked and delivered to buyers packing house at Bronge Spur, by buyer at such time as may be desired by the buyer.

“Terms cash payable.

July 23/1921 $1500.00 Sept. 5/1921 .300.00

Sept. 18/1921 1700.00

“Seller to furnish team and truck free.

“Signed—Seller C. Biglione.

“Signed—Buyer A. Bronge.”

The first and second cash payments were made as in the contract provided. Appellant refused to make the third or final payment, amounting to $1,700, hence the action. The allegation of the complaint as to appellant’s liability to make said payment as provided in said contract is sufficient. This allegation is followed by general allegations authorized by the provisions of section 457 of the Code of Civil Procedure and are to the effect that respondent complied with all the terms and conditions of said contract (the contract being made an exhibit) to be performed by him. Appellant, in answering the complaint, admitted the execution of the contract but denied that according to the terms of said contract, as mentioned in paragraph II of said complaint, or at all, defendant became indebted to the plaintiff in the. sum of $6,200, the contract price of the whole grape crop, or in any sum other than $2,312.55, which amount defendant has paid to plaintiff. He then proceeded to make dsnial “that there were 130 tons of grapes grown and delivered on or from the ranch mentioned in said contract as sold by plaintiff and bought by defendant, or any tonnage or weight of such grapes other than 133,614 pounds.” Appellant admits that “he paid plaintiff as alleged in said complaint the sum of $4,500 in accordance with the terms of said contract for said grapes, and before the delivery thereof; but denies that the tonnage or weight of said grapes and the whole thereof when delivered was 130 tons, or any tonnage or weight other than 133,614 pounds, the price of which was said $2312.55 so paid