Lehmann v. Schmidt

BELCHER, C. C. The case presented for consideration is this: One E. B. Smith was the owner of about one hundred thousand gallons of wine, which he desired to sell. The wine was stored in a cellar at Cordelia, and was in an unsalable condition. Smith met the defendant, Schmidt, and, as he testifies, Schmidt said “he thought he could make a proposition to me, and that, if I would name the standard price that I would be willing to receive for the wine, that he thought he could bring it to the city and treat it, and whatever could be got more than the amount that I would be willing to sell it for after treating it would be divided between us.” The parties then entered into a written agreement, as follows:

“San Francisco, March 3, 1886.

“Agreement made between E. B. Smith, of Martinez, and E. Schmidt, of San Francisco, as following: (1) The said E. B. Smith, having at his cellars at Cordelia about 50,000 gallons Malvasia and Mission, 30,000 gallons Zinfandel, and 22,000 Malvasia, agrees to sell his wines through the agency of the said E. Schmidt at the standard price of 20 cents (twenty cents) per gallon, net. (2) The said E. Schmidt agrees to prepare these wines into a marketable condition at the rate of 1 cent (one cent) per gallon, and to outlay freight on these wines to this city, amounting about to 1 cent (one cent) per gallon. It is further agreed between the parties hereto that all the profits arising out of the sale of these wines over and above the standard price of 20 cents per gallon, and the additional expenses, about 2 cents per gallon, [189]shall be divided in equal shares between the parties hereto; and the said R. Schmidt agrees to furnish the necessary advances of money, in case E. B. Smith is in want of any, the latter giving the proper time of notification to procure the money. No commissions to be deducted, as the one-half of the profit is considered equivalent for. all charges and commissions. ’ ’

Under and in pursuance of this agreement, Smith sent to defendant, on the twentieth day of March, 1886, five thousand eight hundred and two gallons of the wine, and, on the eighth day of May following, two thousand one hundred and seventy-nine gallons more; and defendant received the wine,' and paid the freight thereon. On account of the wines so delivered, and under the agreement, defendant advanced and paid to Smith several sums of money, aggregating $678.50. Defendant also delivered to Smith some casks, which Smith says he ordered, and defendant says “were sold to Smith at his request, and the charges made against him as advances under said contract.” For some reason not clearly stated, defendant became dissatisfied, and refused to receive the balance of the wine under the contract; and thereupon, on the thirtieth day of May, 1886, Smith sold all the wine remaining at Cordelia to other parties for eleven cents per gallon. Subsequently, on the seventeenth day of June, 1886, Smith demanded from defendant a return of the wines delivered to him under the contract, but defendant refused to give them up, or make any accounting. No offer was made at the time of this demand, or subsequently, so far as appears, to pay defendant the money he had advanced on the wines and expended for their freight and improvement, or any part thereof, nor to return to him the casks which he had furnished. In this condition of things, Smith, on the seventeenth day of July, 1886, sold and assigned to the plaintiff all his “interest and claim, of whatever kind and nature, in and to those ten thousand gallons of wine, more or less, now held by R. Schmidt, or sold by him for my account”; and thereafter, on the twenty-third day of the same month, the plaintiff commenced this action, alleging in his complaint “that on or about the eighteenth day of June, A. D. 1886, in the city and county of San Francisco, state of California, E. D. Smith sold and delivered to the defendant, and at his