Meyerink v. Barton

CHIPMAN, C. Action for breach of warranty of quality of certain salt sold by defendant to plaintiff. The cause was tried by a jury, and plaintiff had the verdict. The appeal was taken within sixty days from the rendition of judgment, and a reversal is asked upon the ground that the judgment is not supported by the evidence: Code Civ. Proc., sec. 939, subd. 1. The transcript contains a statement on motion for new trial, which motion had not been heard when this appeal was taken.

No alleged errors of law committed at the trial are presented on this appeal. The sole and only question argued is, Is there sufficient evidence to support the verdict? Defendant is a manufacturer of salt, whose works are near Alviso, Alameda county. He has a place of business in San Francisco. Plaintiff is a commission merchant of San Francisco. In November, 1894, plaintiff purchased from defendant twenty-five tons of “half-ground” salt, according to sample furnished, to be shipped to one Guillermo Garcia Salas, a merchant of Betalhulen, Guatemala, by steamer “San Bias,” the port of destination being Champerico. The salt reached its destination on November 27, 1894, and was satisfactory to the consignee. He shortly after telegraphed plaintiff to duplicate this shipment, and plaintiff gave the order to defendant about December 1st, pursuant to which defendant, on December 6, 1894, shipped the salt on the steamer “San Juan,” which sailed on December 7, 1894, to the same consignee and to same port of destination. The controversy arises out of this last shipment, plaintiff claiming that the salt was not according to sample, but much inferior, whereby he suffered loss as alleged.

Defendant’s counsel say in their brief: “We are fully aware of the general rule that, in an appeal from a judgment, the verdict will not be disturbed, even though not supported by a preponderance of evidence, if there is a substantial conflict in the evidence. ’ ’ While not admitting' a [553]substantial conflict, they “invoke a modification of the rule in this case from the fact that the only semblance of testimony which could be regarded as raising a conflict comes to us under very suspicious circumstances, and is in the form of loosely drawn ex parte affidavits and depositions, made by natives of a foreign country, viz., Guatemala, and taken in Guatemala.” We are cited to Wilson v. Cross, 33 Cal. 60, and to Reay v. Butler, 96 Cal. 206, 30 Pac. 208, in support of the claim that in such cases “this court has held that the rule does not retain its full force.”