Crosby v. Watkins
Before: Terry
Synopsis
Appeal from the Ninth District, County of Tehama.
This was an action for damages for the non-delivery of a quantity of wheat purchased by plaintiff of defendants.
The facts as stated by the Court are as follows : H. M. Stone, the agent of the plaintiff, contracted with the defendants for the purchase of a quantity of wheat, at the price of two cents and a half per pound, to be delivered upon demand and paid for on delivery. The contract was made by Stone, in his own name, without disclosing his principal. Within the time limited by the contract, plaintiff, through Stone, notified the defendants that he was ready to receive and pay for the wheat under the contract, and demanded a delivery, which the defendants refused. The contract price of the wheat was two and a half cents per pound, and the Court finds that at the time of demand and refusal to deliver, it was worth four cents per pound. Plaintiffs had judgment for the difference between the contract price and the actual value of the wheat, and from this judgment the defendant appeals.
Terry, O. J., after stating the facts, deEvered the opinion of the Court—Baldwin, J., concurring.
Two questions are presented by the record: First, whether the plaintiff can sue in his own name on the contract; and second, whether [88]he can recover in this action without showing a tender of the price agreed on.
The first point is answered by the decision of this Court in Ruiz v. Norton, 4 Cal., 855.
Upon the second point, Mr. Parsons, in his work on Contracts, vol. 1, p. 449, states the rule to be as follows: “ In every sale, unless otherwise expressed, there is an implied condition that the price shall be paid before the buyer has a right to possession; and that is a condition precedent. But it seems, that in an action for non-delivery, the buyer need only aver that he was ready and willing to receive and pay for them, and a refusal to deliver, without averring an actual tender.”
In such cases, the measure of damages is the difference between the contract price and the actual value of the article sold. 2 Parsons, 481, note A.
Judgment affirmed.
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