Munson v. Crescent Commercial Corp.

WHITE, P. J. Defendants appeal from a judgment entered after trial before the court, sitting without a jury, cancelling three written contracts for the delivery of beer by the plaintiffs from Crescent Commercial Corporation, and ordering that plaintiffs recover the sum of $3,300 and interest from the defendants.

In the' first cause of action of the complaint it is alleged that on May 8, 1946, plaintiffs, who were engaged in the retail sale of beer in Los Angeles, entered into an agreement with defendant Crescent Commercial Corporation whereby plaintiffs agreed to purchase 1,800 cases of “eastern” beer at OPA prices, a copy of the agreement being annexed to the complaint; that prior to entering into the agreement said defendant represented that it had five different brands of “eastern” beer and that all five brands would be delivered to plaintiffs in accordance with their request; and further stated that the beer was “good eastern beer”; that plaintiffs entered into the agreement in reliance on said statements. In accordance with the terms of the agreement plaintiffs deposited the sum of $1,800 with said defendant.

It was further alleged that in 1946 and 1947 “eastern” beer was designated in the trade as beer manufactured in the eastern part of the United States and was of better quality than “western” beer, and “had a certain defined standard of quality and taste”; that about March, 1947, plaintiffs received complaints from their customers and on investigation ascertained that the beer they were receiving from said defendant was “sour,” “cloudy” and “wild,” and did not [842]have the taste or quality of “eastern” beer; that said defendant also failed to supply plaintiffs with five different brands of beer, but only one or two brands. That upon complaint being made, said defendant advised plaintiffs that it would replace the beer with a good grade of “eastern” beer, but failed to do so, whereupon plaintiffs notified said defendant that they did not desire any more of its beer. That the written agreement of May 8, 1946, provided that the price of the beer should be at OPA ceiling price; that said defendant had been charging plaintiffs $3.19 per case, but was selling the same beer to others in the city of Los Angeles for $2.19 per case. That defendants have failed to pick up “empties” on plaintiff’s hands for which plaintiffs were entitled to a credit of $150.

Further, it was alleged, a controversy existed between the parties, in that plaintiffs contended the agreement was unenforceable as there is no definite agreement as to the price to be charged, in that there was no further OPA ceiling price on beer and the defendant contends it can charge any price it desires; and further, that the defendant is not delivering the type of beer commonly known as “eastern” beer, nor delivering five different brands of “eastern” beer, and is not picking up the cases of empty bottles held by plaintiffs.