Johnson-Locke Mercantile Co. v. Howard

PER CURIAM. Action on contract for the sale and purchase of certain raisins. Plaintiff had judgment, from which, and from the order denying his motion for a new trial, defendant appeals.

The court found the following facts: (l) That on or about July 30, 1898, the plaintiff agreed to buy from defendant, and defendant agreed to sell to plaintiff, the entire crop of muscat raisins of defendant, produced in the year 1898, estimated to be eight carloads, at the following prices; to wit: For two-crown raisins, two and one-half cents per pound; for three-crown raisins, three cents per pound; for four-crown raisins, four cents per pound; for seedless raisins, two and one-half cents per pound-—less five per cent of the gross amount computed at the above rates. Whole crop to be boxed in fifty-pound boxes, and to be shipped in October, 1898. Fresno grading. Terms cash on delivery f. o. b. Woodland, Cal. (2) That the crop fell far short of the estimate, there being only 2,192 boxes, as follows: 1,158 boxes of two-crown raisins, 734 boxes of three-crown, 88 boxes of four-crown, and 212 boxes of seedless raisins of the aggregate value of $2,840.02. (3) That on October 31, 1898, plaintiff offered to accept the -above-mentioned quantities in fulfillment of defendant’s agreement, and tendered him therefor the sum of $2,860.21 (being $20.19 in excess of the amount due), and demanded delivery, but defendant refused to deliver the raisins, or any part thereof, to plaintiff’s damage in the sum of $814.72. (4) That the tender made by plaintiff was a draft on plaintiff, payable to defendant’s order, for $2,860.21, “which the defendant refused to accept, and refused to deliver the raisins, or any part thereof; but at the time of the tender of the check aforesaid, the -defendant made no objection to the said check, or to the amount thereof, or [750]to the form or manner of the plaintiff’s tender.” Defendant alleged in his answer, in effect, that negotiations were entered upon in July, 1898, for the purchase by plaintiff and sale by defendant of the raisins in question, and that the negotiations continued until about October 30, 1898, “but at no time was any final and conclusive agreement made or entered into by and between the parties in respect of said crop of raisins, or in respect to all the terms and conditions of such purchase and sale thereof, and said negotiations were, never finally consummated or brought to a close until on or about said thirtieth day of October, 1898”; that about said date plaintiff sent its duly authorized agent, one C. C. Kinsey, from San Francisco, to examine said crop of raisins, with a view of finally consummating said negotiations; that said agent made examination of the raisins, and thereupon refused to comply with the terms mentioned during the negotiations, and thereupon defendant “broke off all further negotiations with said plaintiff relative to such purchase and sale of said crop of raisins, and put an end to the same, and refused to have any further dealings with said plaintiff with regard thereto, and then and there so notified said plaintiff; that afterward, to-wit on or about October 31st, and at the time mentioned in plaintiff’s complaint, the said Kinsey, acting as the agent of said plaintiff, made the offer, tender and demand hereinbefore set out in this answer.” As to these allegations the court found: (5) That they “-are not true as therein made, but in relation thereto the court finds that on or about the thirtieth day of July, 1898, the plaintiff and defendant entered into negotiations which resulted in the agreement on the part of plaintiff to buy, and on the part of the defendant to sell, all of his crop of muscat raisins of the year 1898, as alleged in plaintiff’s amended complaint,” and as above stated in findings 1, 2 and 3; “that it is true that on or about the thirtieth day of October, 1898, the plaintiff sent its authorized agent, 0. G. Kinsey, from San Francisco to the farm of defendant, to examine said crop and accepted the same.” It was further found that the said Kinsey did not refuse to comply with the terms mentioned during said negotiations, nor did he repudiate the offers made by plaintiff during said negotiations; but that it is true that “defendant then and there broke off all further negotiations with plaintiff relative to