Jesse R. McNames, Inc. v. Henry C. Bergmann, Inc.

WARNE, J. pro tem.* This is an appeal from a money judgment in an action for breach of contract.

On July 11, 1956, the parties in this action entered into a written agreement whereby appellant agreed to sell and respondent agreed to buy a certain 1,250-gallon used milk tank which appellant expected to get as a trade-in from a customer at Tempe, Arizona. The tank was to be delivered to respondent f.o.b. at appellant’s plant in South Gate, California, and respondent was to pay appellant the sum of $2,480 which included $1,800 for the tank; $350 for installing it on respondent’s truck; federal excise tax and California sales tax. Of the total amount $608 was paid at the time of the execution of the contract, the balance to become due and payable on delivery.

The purchase order, which became the contract, provided:

“This order when accepted by yourselves and countersigned [265]by an authorized representative of our firm will constitute a contract of purchase and sale between us.”

Appellant contends that the sale of the tank was conditional upon its being procured from the customer in Arizona. There is substantial evidence to the contrary.

True, respondent testified upon cross-examination that he understood that the tank was a used one; that it was said to be some place in Arizona; that he understood that the tank was going to be received by appellant as a trade-in on a new tank; and that he was dealing for that particular tank; but when asked if in the event the tank was not delivered to appellant it was his understanding that the deal was off, he replied, “I didn’t think there was going to be any question about it being delivered. They was [sic] making a tank to take down there, a larger tank, to replace the smaller tank. When he took my downpayment of $608.00 why, I figured that he surely was going to get the tank. ’ ’ This is borne out by the fact that immediately after the contract was signed respondent purchased a truck and had it lengthened for the specific purpose of mounting the tank thereon. Surely there was nothing in this testimony to indicate that the parties to the contract mutually understood that it was not a binding contract unless the seller was able to get the specific tank in question. Further there was evidence from which it appears that the appellant likewise so understood the contract. Such is apparent from a reading of its letter of August 30, 1956, addressed to respondent wherein it is stated: