Buckner v. A. Leon & Co.

PRESTON, J.

This is an appeal from judgment in favor of plaintiff in an action for damages because of failure of defendant buyer to accept full delivery under a written contract between the parties for the sale and purchase of green grapes.

Said contract provided that the grapes were to be delivered

“£. o.

b.” a shipping point near plaintiff’s vineyard. At the same time the parties also agreed orally, as alleged, proved, and found by the court, that defendant would furnish lug boxes for said grapes at plaintiff’s ranch in accordance with the prevailing custom of the county where the transaction took place; and defendant did, in fact, furnish many such boxes, but not in sufficient numbers to permit of delivery of the total tonnage contracted for; hence plaintiff was obliged to make other disposition, at a loss, of the undelivered balance of said grapes for which no boxes were furnished. The trial court gave judgment in his favor for the contract price of said undelivered grapes, less the amount received by him from sale thereof, and certain costs. Defendant has appealed.

[227]

It has long been the rule that when parties have not incorporated into an instrument all of the terms of their contract evidence is admissible to prove the existence of a separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms

(Sivers

v.

Sivers,

97 Cal. 518, 521 [32 Pac. 571] ;

Torrey

v.

Shea,

29 Cal. App. 313, 317, 318 [155 Pac. 820];

Greathouse

v.

Daleno,

57 Cal. App. 187, 190 [206 Pac. 1019];