Pederson v. Goldstein

DESMOND, P. J. Defendant Goldstein appeals from a judgment in the sum of $2,697.90 assessed against him in an action baséd upon a breach of warranty. He contends that the evidence is insufficient to sustain the judgment, but having examined the record we find that it is insufficient to sustain the appellant’s contention.

[156]In the month of November, 1943, appellant advertised Christmas trees at wholesale. Plaintiffs Pederson and Lawless, desiring to acquire some for sale in Long Beach called upon him at his place of business, a furniture store in Los Angeles, and acquainted him with their intention. He directed them to go to a store across the street where he had Christmas trees on display and where plaintiffs could examine them. After completing their inspection they returned to the furniture store and according to Lawless, “We told him we would like to have some trees if he could furnish them just like he had on display over there and he said, ‘Well, I can get you a truckload in the next day or two.’ He gave us a price on a truckload of trees and we told him if he could furnish the same trees, we would take a whole truckload. . . . He said, ‘When the trees come down, we will send them by truck to your place and you pay us when they arrive. ’ ” On November 27th the trees, 3,130 in number and tied in bundles, were delivered on a truck to a storeroom in Long Beach designated by plaintiffs. Goldstein was personally present at the time and while the trees were being unloaded by his helpers with the assistance of Pederson, Lawless went with him to a Long Beach bank, cashed a check for $3,200 and paid him that amount in cash as the agreed purchase price for the truckload of trees. Approximately a week later when plaintiffs undertook to put the trees on display and opened up the bundles the great majority were found to be branches or laterals. A landscape gardener testified that possibly 10 or 12 per cent of them were symmetrical in shape but the rest were “laterals, suitable for some kind of decorations for the church or a big building to put alongside the wall. They would have been very good for that, if they had been in better condition. ’ ’ Lawless testified that “The trees I saw in the storeroom were full, symmetrical trees. The ones that were delivered were lopsided. Looked more like branches or shoots. The majority. Some, a few, were good trees.” Plaintiff Pederson testified that on December 6th he complained to appellant as to the quality of the trees, describing them as branches of very poor quality and “He said that he would see we didn’t lose any money on them, that we would return 500 trees. Call him up every third or fourth day, that he would help us dispose of the trees until we got rid of them all. ’ ’ Accordingly, plaintiffs next day delivered to appellant 532 unsatisfactory trees and took his receipt therefor, but when, on December 13, they