California Canneries Co. v. Scatena

McFarland, J. Appeals by defendants from the judgment and order denying a new trial.

In the complaint it is averred, substantially, that “on or about the fourth day of August, 1894,” plaintiff purchased of the defendants, Lorenzo Scatena and A. P. Giannini, copartners, doing business under the firm name of “L. Scatena & Co.,” and said defendants, under said firm name, sold to plaintiff one hundred and fifty tons of peaches of certain named varieties for the price of twenty dollars per ton, delivered to plaintiff; that defendants refused to deliver the peaches, or any of them, although demanded, etc.; and that plaintiff was damaged by said refusal in the sum of fifteen hundred dollars-The answer was a denial of the substantial averments of the complaint. The court found all the issues, except the amount of damages, in favor of plaintiffs; found the damages to be seven hundred "and fifty dollars, and gave judgment for the last-named sum. Thfe two main propositions made by appellants for a reversal are: 1. That there was not sufficient evidence to show a sale as averred in the complaint; and 2. That there was not sufficient memorandum in writing to take it out of the statute of frauds.

1. There was sufficient evidence of the sale. The testimony of Henry Jacobs is to the point that a short time before August 4th, he, on behalf of respondent, made a verbal purchase of the peaches from the defendant Lorenzo Scatena, acting for the firm, and then wanted the transaction reduced to writing, but Scatena said it was not necessary. On August 4th Jacobs asked Scatena to give him a writing showing the sale. They were then on the Jackson street wharf in San Francisco, and Jacobs wanted Scatena to go to his store to have the writing made, but the latter said he had not time, and, handing Jacobs a piece of paper, told him to write it quick. Thereupon, Jacobs wrote the instrument intro[449]duced by respondent marked “Exhibit 1,” and Scatena signed it. It was written on a rough box or desk, used by teamsters to sign their receipts. A photographic copy of the document is in the record, and the body of it is as follows:

“Scott’s Ranch, Aug. 4th, ’94.

“One dollar in hand paid, I sell California Canneries Company, San Jose, one hundred and fifty tons of choice canning peaches. Varieties: Fosters, Mary’s Choice and Salways, at $20 per ton delivered.”

After having been written by Jacobs, it was signed by said Scatena. The writing took up the entire side of the paper, leaving no room for a signature, and Scatena wrote the signature across the face of the document. The signature was either “L. Scatena,” or “L. Scatena & Co.,” some of the testimony being that “& Co.” was written at the time, but had become partly or wholly obliterated. But there is no doubt that, according to the great preponderance of the evidence, he thus wrote either “ L. Scatena” or “L. Scatena & Co.” He was seen writing it, not only by said Jacobs, but by other witnesses. And the transaction was with the firm of L. Scatena & Co., for which he was acting, and for which he had the right to act, and the signature was intended to be, and was, in law, the signature of the firm.