Garcia v. Berman

YORK, P. J. This is an appeal by defendants from a judgment in favor of plaintiff in an action for damages for breach of contract.

The record discloses that on or about September 9, 1942, respondent Garcia and appellant B. Berman entered into an oral contract whereby respondent agreed to sell and appellants agreed to purchase for the sum of $3,040, thirty-eight head of cattle, the same to be delivered at Los Angeles. Appellants paid $100 on account, and, the complaint alleges, they further agreed to deliver forthwith to respondent a cashier’s check for the balance of the purchase price. Appellants had a prospective purchaser for the cattle and desired delivery thereof at Los Angeles on the following Monday morning, September 14th. George Matts, appellants’ agent or “spotter” at San Luis Obispo County, who was present when the contract was entered into, informed respondent that appellants’ check was in the mail. Consequently, respondent shipped the cows on Sunday morning but, because he had not then received the certified check, he consigned the [114]stock to California Commission Company at Los Angeles from himself rather than from appellants. Later that day, respondent received a personal check from appellants which he deposited for collection with an Atascadero bank on Monday, September 14th. Meanwhile, the cattle arrived at Los Angeles and appellants, being unable to secure them since they were consigned in respondent’s name, stopped payment on the check.

Respondent testified that “if I had got a certified check before I loaded the cattle, if it had been a certified check instead of his (Berman’s) personal cheek I would have sent a telegram down that night (Sunday) ” to the California Commission Company. He further testified that he told appellant Berman on the day the contract was made that “I had to have my money before I shipped the cattle or before I turned the cattle over to him. ... I told him I wanted a certified check for the cattle” before they were shipped. The agent Matts testified that respondent stated that he wanted a certified check and that appellant Berman said “You don’t have to worry about my check, my check is just as good, certified or not”; but that he would send a certified check. Appellant Berman testified that nothing was said about the check being certified, but that respondent “wanted the check sent to him. He demanded that.”

The cattle were placed in a feeding yard and on September 29, 1942, respondent sold them to a third party. Before doing so, respondent’s attorney sent the following telegram to appellants: