Tatum v. Ackerman

ANGELLOTTI, J.

This action was brought to recover $1,581.98 and interest, in which sum, it was alleged in the complaint, the defendant “became and was indebted to plaintiffs . . . for and on account of goods, wares, and merchandise sold and delivered by plaintiffs to defendant.” The allegations of the complaint were specifically denied by the answer, and, in addition, a breach of warranty was alleged,— viz., that an engine, which was one of the articles sold, failed to satisfy the plaintiffs’ warranty,—and thereupon the

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defendant had rescinded the purchase and had attempted to return the engine to the plaintiffs. It appeared upon the trial that defendant, upon the alleged ground as to the breach of warranty as to the engine, refused to accept or keep any of the merchandise sold and delivered to him, but shipped all the articles from Usal, California, to San Francisco, addressed to the plaintiffs. Plaintiffs refused to receive the goods back from the defendant, but attached them on tho institution of this action. On the trial defendant did not introduce any proof as to the alleged breach of warranty, and the court found that the engine was as represented by the plaintiffs. The merchandise had been sold by the plaintiffs to the defendant upon a credit of sixty days from September 24, 1900. This action was commenced within said sixty days,—viz., on the fifth day of November following,-— but the court found that the defendant had refused to keep the merchandise and had shipped it back to the plaintiffs, with the intention of abandoning and repudiating his purchase thereof, and that he did repudiate such purchase, and that prior to and at the time this action was commenced he did not intend to pay plaintiffs at any time or at all for the said merchandise, and gave' judgment for plaintiffs as prayed for in their complaint. This appeal is taken from the judgment and from an order denying defendant’s motion for a new trial.

The contention on this appeal is that the action was prematurely brought,—that an action upon the contract of sale for the purchase price of the articles sold could not be maintained until the expiration of the time of credit allowed thereby,—and this contention presents the only question to be determined. It is, of course, not disputed that where goods are sold on credit an action cannot ordinarily be maintained for the purchase price until the term of credit has expired. Until such time the obligation to pay has not matured, and there has been no breach of contract as to payment. But it is alleged that the credit here was conditioned upon the acceptance of the goods by the vendee, and his payment for them at the expiration of the term of credit, and that by his refusal to accept he necessarily waived the condition as to credit, and in effect declared that he did not intend to pay for the goods at all. The stipulation here as to credit was absolutely unconditional, unless such a con