McCall v. Schnackenberg

MUSSELL, J. This action was commenced in the Municipal Court of Riverside Judicial District. McCall and Noblitt, plaintiffs therein, sought judgment against defendant Schnackenberg and his wife for fertilizer sold and delivered to them. Defendants filed a general denial and cross-complaint, and alleged that in March, 1953, plaintiffs orally agreed to furnish all the fertilizer that defendants would need to fertilize approximately 25 acres of potatoes and to assist in the supervision and in the planting and raising of said crop; that they failed to deliver the fertilizer as agreed and that by reason of the delay of plaintiffs in delivering said fertilizer defendants’ potato crop was damaged in the sum of $5,000. The cause was transferred to the superior court and a jury trial was had therein, resulting in a verdict in favor of the defendants and cross-eomplainants and against McCall and Noblitt for the sum of $3,000. On August 1, 1957, the trial court granted a new trial on motion of plaintiffs “on the ground of insufficiency of the evidence to justify the verdict and for excessive damages appearing to have been given under the influence of passion or prejudice.” Defendant and cross-complainant Schnackenberg and his wife appealed from the order granting the new trial.

A second amended cross-complaint was filed by the Sehnackenbergs in which they alleged that but for the delay of plaintiffs in failing to furnish fertilizer as agreed, 10,000 sacks of Number 1 and Number 2 potatoes would have been produced by the cross-eomplainants in place of a similar number of poorer quality potatoes; that the demands in the cross-complaint all arise out of the sale of fertilizer to cross-complainants during 1953; that cross-defendants falsely represented that they had been paid for only 227 bags of fertilizer when in fact they had been paid for 260 sacks; that cross-defendants stated that 1,475 sacks of culls owned by cross-eomplainants were worthless and had no value when in fact they did have a value of approximately $147.50; that cross-defendants fraudulently misgraded 1,020 sacks of potatoes.

The complaint herein involved facts which are not disputed. In September, 1953, at the request of appellants, respondents delivered to appellants 800 100-pound sacks of ammonium sulfate to be paid for at a price of $61.25 per ton, if paid within 10 days of invoice, otherwise at $65 per ton, plus 50 additional sacks of sulfate at an agreed price of $65 per ton. Eighteen hundred dollars was paid in 10 days of [357]invoice, leaving a balance due of $851.50. No finding of the jury was made as to the issues in the complaint.