Ryland v. Heney
Before: Gray
Synopsis
Appeal from Judgment —Review of Evidence—Support of Findings.— Upon appeal from a judgment, taken more than sixty days after the entry thereof, the evidence cannot be reviewed to ascertain whether it supports the findings.
Id.—Support of Judgment—Consistency of Findings—Statutes of Limitations— Separate Item—Presumption of Written Contract.—A general finding that no part of plaintiff's cause of action is barred by the statute of limitations is not to be deemed inconsistent with a finding upon an item more than two years old and less than four years old not included in a written contract set forth in the answer and findings. It must be pre- ' sumed from the general finding that such item was based upon a written contract.
Id.—Barred Item—Modification of Judgment.—An item shown in the findings to be barred by the statute of limitations is ground only for a modification of the judgment, by proper reduction thereof, and not for a reversal thereof, merely because of the inconsistency of such item with other findings.
Id.—Judgment Partly Satisfied—Effect of Affirmance.—The affirmance of a judgment will not affect the fact that it has been partly satisfied.
Action for Grapes Sold and Delivered—Written Contract—Time of Payment—Allowance of Interest.—In an action for grapes sold and delivered, where the price of the grapes is fixed by a written contract, pleaded in the answer, and the amount of recovery is capable of being made certain by calculation, the plaintiff, in a judgment based upon the contract, is entitled to recover interest from the time fixed in the contract for payment; and it is proper to look to the contract to determine the allowance of interest.
Id.—Evidence—Letter of Defendant to Plaintiff’s Brother.—A letter written from the defendant to the plaintiff’s brother and received by him in due course of mail, relating directly to the claim upon which the action is based, is admissible against ■the defendant; and the brother, in connection with its admission, may be asked if he had any personal claim against the defendant.
In.—Letter Misdirected to Plaintiff’s Brother—Reference to Plaintiff’s Letter.—A letter from defendant intended for the plaintiff and referring to a letter received by defendant from plaintiff, which was by mistake of defendant’s wife, acting as his secretary, misdirected to plaintiff’s brother, is properly admitted in evidence against the defendant.
GRAY, C.
By reference to the notice of appeal herein we find that on the twenty-second day of October, 1897, the defendant appealed from a judgment entered in plaintiffs favor on the
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twenty-fifth day of March, 1897. At th'e same time defendant also appealed from an order denying him a new trial, which latter appeal was on motion of plaintiff heretofore dismissed by this court.
The action is brought to recover an amount alleged to be due for some grapes sold and delivered by plaintiff to defendant. It appears that the sale was made under a written contract, signed by plaintiff and defendant, which is contained in the answer, repeated in the findings, and reads as follows, to wit:
“Mount Cabernet Vineyard, Cupertino, June , 1892.
“This agreement is to certify that I have sold to R. Heney, Jr., my Cabernet wine grape crop, vintage of 1892, at twenty dollars per ton. Payment to be made one year from average date of delivery. Said grapes to be delivered at his winery in good condition and to contain not less than twenty-four per cent saccharine, and ar'e to be picked and delivered in the order desired from day to day.”
The court finds that between October 10 and November 12, 1892, the plaintiff delivered to defendant under and according to the terms of said written contract 53.5435 tons of Cabernet wine grapes, and that the amount due therefor was and is $1,070.87. The court further finds that the twenty-fifth day of October, 1892, was the average date of delivery as provided in said written contract; that there was paid by defendant to plaintiff $118, as part payment of the purchase price of the said grap'es delivered under said' written contract as aforesaid. It is also found that there is due from defendant to plaintiff $115.48 for grapes (not of the Cabernet variety) sold and delivered between October 10 and November 12, 1892.
It is further found that plaintiff is entitled to judgment against the defendant for $1,068.35, together with interest thereon from the twenty-fifth day of October, 1893, at seven per cent- per annum; and judgment was accordingly entered on March 25, 1897, for $1,323.86, with interest at seven per cent per annum from date of the judgment, and for costs. Thereafter a motion for a new trial was made by defendant, and the trial court being of opinion that the item of $115.48 was
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