McClure v. Alberti

WASTE, J.

Plaintiff recovered judgment, and defendants have appealed. The plaintiff, as executrix of the estate of John McClure, deceased, entered into a written contract with the defendants whereby plaintiff sold and the defendants bought 400 tons of grapes at the agreed price

[349]

of $15 .per ton, delivered and packed on board the cars. About 79 tons of grapes had been delivered and accepted, when the rain damaged those remaining in the vineyard. Thereupon, John Q. McClure, the manager of the estate, who had full authority in the matter, had a conversation with Robert Alberti, one of the appellants, the result of which was an abandonment of the contract by mutual con.sent of the parties. An oral agreement was entered into to the effect that appellants would select various portions of the vineyard from which sufficient grapes might be picked to fill the boxes of the appellants then on the place. This arrangement was carried out, appellants made their selection, and 25 tons of grapes were delivered by respondent to appellants at the railroad station.

Appellants never made any further demand on respondent for grapes. The respondent delivered to appellants, in all, 104.17 tons of grapes at the agreed purchase price of $15 a ton, making the total price $1,562.55. Appellants paid on account all but the sum of $365.74. Respondent made demand for the payment of this amount, and the appellants sought to surcharge the account with the value of a large number of boxes claimed by the appellants to have been delivered to the respondent and lost by her. The parties were unable to reach a settlement, whereupon respondent commenced this action to collect the balance due for the grapes delivered. The appellants answered, and thereafter filed a cross-complaint alleging damages for the failure of respondent to deliver the balance of the grapes specified in the written agreement, placing their loss of profits at $1,479.15, and alleging an additional loss of $46.80 for boxes lost or destroyed. by the respondent. The respondent answered the cross-complaint, denying its allegations, and as special defenses to the claim for damages for the alleged nondelivery of grapes asserted an alteration of the contract, that further performance had been prevented by the appellants, and that other grapes were available in the open market, equally accessible and at an equal or less price than that agreed to be paid by the terms of the contract.