United Lumber Yards, Inc. v. Modesto Irrigation District

THOMPSON, J. From a judgment which was rendered in favor of the defendant to the effect that plaintiff take nothing in this suit for an alleged balance due upon the contract price of cement sold and delivered, this appeal was perfected.

Upon competitive bids therefor, the plaintiff was awarded a contract in January, 1935, to supply defendant with approximately 18,000 barrels of Monolith Tufa cement at a cost of $1.84 per barrel. The contract contained the following provision:

“It is hereby agreed that should the price per barrel of Tufa Cement, on the open market during the life of this con[131]tract, be reduced lower than the price bid per barrel for Tufa Cement in this contract, that the Modesto Irrigation District shall have the benefit of such reduction.”

Pursuant to that contract plaintiff delivered after February, 1935, to the defendant from time to time during the life of the agreement a total of 10,500 barrels of cement, for which it was fully paid with the exception of $817.43, which sum represents the alleged reduction of the price of that cement “on the open market during the life of this contract”. The court found, in effect, that the price of the cement had been reduced “on the open market” in that vicinity during the life of the contract approximately eleven cents per barrel, and that the plaintiff had therefore been fully paid the contract price for all cement sold and delivered thereunder. Judgment was rendered accordingly. From that judgment the plaintiff has appealed.

The burden was on the defendant to show a reduction of the price of cement on the open market during the life of the contract. We are of «the opinion there is ample evidence to support the findings of the court to the effect that there was a reduction in the price of Tufa cement in that district in the open market during the life of the contract to an amount which fully covers the plaintiff’s claim. All of the cement was furnished by plaintiff pursuant to the contract between January 3, 1935, and March 24, 1935. Only 3,750 barrels were delivered before February 13th. Mr. N. M. Cecil, engineer for the Modesto Irrigation District, testified that on February 13, 1935, the defendant’s attention was called to the fact that the Monolith Portland Cement Company issued a schedule under which it sold Monolith Tufa cement at reduced prices throughout the state of California, effective from the last-mentioned date, fixing the price, including the cost of delivery to the various destinations; that this schedule fixed the price at $1.70 per barrel at Modesto, and $1.73 per barrel at Waterford, where the cement in question was to be delivered; that this reduced schedule of prices remained fixed at those figures until June 28, 1935. This schedule of prices was received in evidence without objection. Mr. Cecil further testified that the defendant purchased from the Yosemite Cement Company in the latter part of February two carloads of cement at the reduced price of $1.71 per barrel. On April 1, 1935, the plaintiff sent to the defendant a tabulated statement of its account, claiming