Ryan v. Rogers

De Haven, J. — On June 4,1889, the defendants entered into a written contract with Erlanger & Galinger, whereby they agreed to deliver to the latter, on or before November 30, 1889, at San Buenaventura, five car-loads of choice lima beans of the crop of 1889, for the price of $2.75 per hundred pounds. The plaintiff is the assignee of Erlanger & Galinger. It is alleged in the complaint that defendants failed and refused to deliver the beans called for in the contract, or any part thereof, and this action is brought to recover damages alleged to have been sustained by reason of his breach of the contract.

As one defense to the action, the defendants, in their answer, allege that the contract referred to in the complaint was afterwards modified in writing by changing the place for the delivery of said beans to Hueneme, and extending the time for such delivery until and including December 17, 1889; and in this connection the answer alleges that the defendants reside and do business in Santa Barbara, and that there is a regular daily communication between that place and Hueneme, a portion of the way by stage, which crosses the Santa Clara River, and that on the sixteenth, seventeenth, and eighteenth days of December this river “ was swollen by recent rains, so that its passage was impossible; that said stream was unbridged, and at seasons of heavy rains it becomes for days wholly impassable”; and on the sixteenth day of December “ the agent of defendants, thereunto duly authorized to deliver said beans in accordance with the terms of said contract, attempted to cross said stream and reach said port of Hueneme, but was prevented from reaching the same upon that day or the following day by an irresistible and superhuman cause, and defendants sent another agent, by sea, to said port of Hueneme, who reached there at noon of December 18, 1889,” and upon that' day they offered to deliver the beans called for by contract, but the assignors of plaintiff refused to accept them.

The case was tried by the court without a jury, and [351]the court found the terms of the contract to be as stated in the complaint, and that the time for the performance thereof had not been modified or extended, as alleged in the answer; that defendants had failed to perform the contract, and plaintiff had thereby sustained damage in the sum of nine hundred dollars. Judgment was given for plaintiff upon the findings, and the defendants appeal.

1. Upon the trial the defendants offered to introduce in evidence certain telegrams and letters which passed between themselves and the assignors of plaintiff relative to an extension of time within which the defendants might deliver the beans referred to in the original contract. The first one necessary to notice bears date December 7,1889, and is as follows: —