Bullard v. Stone

Searls, C. This action is brought to recover damages for violation of a contract to sell and deliver a quantity of wheat. Cause tried by a jury. Verdict and judgment in favor of plaintiff for $2,000. A motion for new trial was made and denied. The appeal is from the judgment and from an order denying a new trial.

On or about the 5th of December, 1882, the defendant entered into a contract with plaintiff for the sale and delivery by the former to the latter of 7,976 sacks of wheat, aggregating 1,097,161 pounds.

At the date of the contract 4,400 sacks, containing 602,800 pounds, were at Squaw Hill. A further quantity of 1,045 sacks, containing 148,390 pounds, and constituting a separate lot of wheat, was also at Squaw Hill. One thousand two hundred and forty-six sacks, containing 167,490 pounds, were at Willows, and the remainder, consisting of 1,285 sacks, containing 178,481 pounds, at McIntosh Landing, all of which places are in Colusa Countyi

The wheat was to be paid for on delivery at the rate of $1.47J per hundred for the two lots at Squaw Hill and at the rate of $1.50 per hundred for the residue. The wheat at Willows and the smaller lot of 1,045 sacks at Squaw Hill were delivered to plaintiff and paid for by him. The wheat was in warehouses, and two receipts had been issued therefor, one of which was held [479]by a bank and the other by one H. Kraft. At the date of the contract plaintiff received an order for these warehouse receipts from defendant. It was agreed that plaintiff should pay all warehouse charges on the grain and deduct the amount so paid from the purchase price.

He paid $200 on this account, and also expended $175.71 in necessary repairs to sacks and in resacking some of the grain preparatory to shipment.

The attack of appellant upon the verdict of the jury is twofold : First, he contends that the evidence failed to establish the necessary facts upon which to predicate a proper verdict for damages in such a case; and second, that conceding the propriety of the verdict for some amount, it should not have exceeded $1,575.

Section 3308 of the Civil Code is applicable to this case, and is as follows: —

“The detriment caused by the breach of a seller’s agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer over the amount which would have been due to the seller under the contract, if it had been fulfilled.”