Sorensen v. Sand

MUSSELL, J. In this action on a contract for delivery of grape rootings, defendant appeals from the judgment in favor of plaintiff, and plaintiff appeals from a part of the same judgment.

Plaintiff L. P. Sorensen was a retail nurseryman engaged in the purchase and resale of grapevines and other nursery stock to growers. The defendant, T. A. Sand, was a wholesale nurseryman engaged in the growing of nursery stock in large quantities, most of which he sold to retailers such as the plaintiff. From time to time, during the latter, part of 1944 and the early part of 1945, plaintiff placed orders with defendant for large numbers of various varieties of grape rootings to be furnished and delivered to plaintiff in the latter part of 1945 or the early months of 1946.

A large number, but not all of the vines ordered by plaintiff were delivered by defendant. Plaintiff was charged with and paid for those actually delivered; however, he rejected a substantial number as being undergrade. Some of the rejected vines were replaced and as to such replacements there is no controversy, and some credits were allowed for rejected vines, and there is no controversy as to such credits.

Plaintiff’s first cause of action is based, on his contention that defendant did not replace nor credit plaintiff with all of the undergrade vines, and he claims damages to the extent of the agreed purchase price of the vines not replaced nor credited. Defendant in his answer denies any failure to replace or credit plaintiff with the price of all undergrade vines, and further alleges an accord and satisfaction. The trial court in its findings and judgment sustained defendant’s position on plaintiff’s first cause of action and plaintiff appeals from that part of the judgment. Plaintiff alleged in his first cause of action that 530,000 Thompson Seedless rootings were purchased from defendant; that large quantities were rejected by many of plaintiff’s customers and replaced by defendant; that defendant refused to replace 32,191 vines which had been rejected by plaintiff’s customers on account of being off-grade and that plaintiff was compelled to purchase replacements for his customers in the open market. The trial court recited in its findings that it was unable to find from the evidence that plaintiff’s contention as to rootings being under-grade were true and therefore found it to be untrue that the deliveries to the customers in question included any subgrade or defective rootings which defendant refused to replace. The evidence is in sharp conflict as to the number of rootings for [781]