Bedell v. Kowalsky

Searls, C. This action was brought to recover a balance. on account of wheat sold and delivered to defendant.

Plaintiff had judgment, and defendant prosecutes this appeal from such judgment and from an order denying a new trial.

The demurrer to the complaint was properly overruled.

The objections are twofold: —

1. That it showed a sale of two lots of wheat according to sample, and at the same time averred a delivery of a greater quantity than called for by the contract.

2. That the contract was to deliver within ten days, and the averment is that a portion of the wheat was not delivered within the specified time.

[237]The answer to these objections is that the complaint averred the delivery of a larger quantity to defendant through his agent, who accepted it for him and pursuant to his orders. It was the privilege of the defendant to receive a larger quantity than that called for by his contract if he saw fit, and to receive it at a later period than that named in the agreement, and if he did so, he is liable.

The second point made by appellant relates to a variance between the allegations and the proofs.

According to the complaint the plaintiff on the second day of August, 1887, sold to defendant 2,000 sacks of wheat, to be equal to sample Ho. 90 (then delivered to defendant), at $1.85 per cental, and 1,060 sacks, to be equal to sample Ho. 69 (then delivered to defendant), at $2.00 per cental, all of said wheat to be delivered to defendant in ten days at the warehouse of Starr and Company, at South Vallejo, California, and to be paid for as fast as delivered; that before August 10th, plaintiff delivered 2,395 sacks of the wheat equal to sample 90, which was received by Starr and Company for defendant by his order; that defendant refused to pay for the wheat so delivered, and notified plaintiff not to deliver any more, but that plaintiff delivered the remainder of the wheat, to wit, 1,060 sacks, equal to sample 69, to Starr and Company, who accepted and stored the same according to defendant’s orders; that defendant has not paid for the same, or any part thereof, except $6,000. The quantity in pounds of each quality of wheat is given, and judgment demanded for the prices specified, amounting to $2,966.78.