Reif v. Karp

WOOD (Parker), J. In the complaint there are ten causes of action for money allegedly agreed to be paid for services rendered. In his answer defendant set forth three alleged counterclaims. It appears from respondent’s (plaintiff’s) brief that the parties stipulated that the third alleged counterclaim should be deemed a cross-complaint. The court found, among other things, that plaintiff had rendered services for defendant of the values alleged in the various causes of action in the complaint; and that defendant was entitled to a set-off as alleged in the counterclaims. Judgment was for plaintiff for $722. Defendant appeals from the judgment.

Appellant’s contentions relate only to the issues presented by the cross-complaint. In the cross-complaint it was alleged as follows: That each of the parties is engaged in the business of manufacturing and selling' handpainted silk neckties; on March 5, 1946, the parties entered into an agreement to purchase from the United States certain commodities consisting of used silk parachutes packed in wooden crates, upon a bid theretofore made by plaintiff (cross-defendant); plain[545]tiff would have said parachutes delivered in said crates to such warehouse as may be mutually agreed upon by the parties; the parties would meet at said warehouse at a time mutually agreed upon and open the crates and divide equally said parachutes between them; the $3,000 which plaintiff had theretofore deposited with the government in connection with the bid should apply on the purchase price and defendant would advance the balance of the purchase price; each of the parties would pay one half of the expense incident to said purchase price and also one half of the expense of hauling the crates to said warehouse; thereafter the parties purchased from the United States 8,458 pounds of silk parachutes packed in wooden crates; in order to pay the balance of the purchase price, defendant advanced to plaintiff $11,632.34 and plaintiff thereupon paid to the United States the purchase price of all of said parachutes in the sum of $14,632.34; plaintiff failed to have said parachutes delivered to such warehouse as the parties may have mutually agreed upon, but caused the parachutes, contained in approximately 40 crates, to be delivered to his own place of business; plaintiff opened certain of said crates immediately upon their arrival at his place of business and in the absence of, and without the knowledge of, defendant, plaintiff removed the parachutes from the crates he had opened and caused certain of said parachutes to be removed from plaintiff’s place of business, and plaintiff thereupon set aside the remaining crates for defendant; plaintiff failed to divide the parachutes equally between the parties, but on the contrary plaintiff set aside for delivery to defendant 20 crates containing 2,539 pounds of the parachutes and retaining for his own use 5,919 pounds of said parachutes; on March 11, 1946, defendant caused the 20 crates set aside for him by the plaintiff to be delivered to his place of business, believing that they contained one half of the silk parachutes; on March 14, 1946, the plaintiff remitted to defendant the sum of $4,561.34 out of the sum defendant had advanced to plaintiff on the purchase price of the parachutes; the 2,539 pounds of silk parachutes delivered to defendant are of the agreed value of $4,392.47, and the expenses incident to the purchase of the parachutes chargeable to plaintiff are $42.88; the defendant paid plaintiff $2,635.75 on the purchase price of one half of said parachutes and expenses in excess of the amount due plaintiff therefor; and the defendant is indebted to plaintiff in the sum of $570.67, leaving a net