Pray v. Trower Lumber Co.

From a judgment based upon a verdict awarding plaintiffs (the sellers) the price of five carloads of lumber, defendant (the buyer) appeals, claiming (1) that, as title to the lumber did not pass, the verdict erroneously awarded the contract price in accordance with section 3310 of the Civil Code instead of the excess of the contract price over either the net proceeds of resale or the value to the seller, as specified in section 3311 of the same code, and (2) that the verdict lacks the certainty or definiteness required by section 626 of the Code of Civil Procedure. The complaint, in the first count, alleges that the -parties entered into a written agreement for the sale of “six carloads of lumber'of 6/4 No. 2 pine box rough lumber at the

An examination of the evidence discloses no material conflict except as to the quality of the lumber delivered. Defendant’s written order literally, and plaintiff’s written acceptance substantially, which together created the agreement between the parties (Tuso v. Green, 194 Cal. 574 [ 229 Pac. 327 ]; Martyn v. Western Pac. Ry. Co., 21 Cal. App. 589 [ 132 Pac. 602 ]), contained the following pertinent terms: “Ship to J. O. Means, Los Angeles, price $25.00 per M. f. o. b. car Los Angeles. Usual terms five cars 6/4 No. 2 Pine Box Rough. Only one minimum carload to be shipped as sample. If first car is not satisfactory balance of order to be cancelled.” The quantity subsequently was increased to six carloads. The figures “6/4” designated the thickness of the individual board (i. e., one and one-half inches thick) and “No. 2” its grade. Six days subse

The first or sample car was accepted by the box company and paid for by the defendant. In its answer defendant offered to pay for the second car, which was finally accepted by the box company after its rejection. The remaining four ears were rejected by the box company on the ground of nonconformity to sample and returned to the carrier, who sold two of them in partial satisfaction of its lien for freight.

The acts and conduct of the parties, with reference to the dispute as to the quality of the last four carloads, is more accurately and complete^ pictured by their correspondence than it is by their verbal testimony as to conversations, because the correspondence, by its terms, was intended to confirm, summarize and reduce to permanent form those conversations. About one month after the date of its order defendant wrote plaintiffs, complaining that the grade of lumber in the second and later ears was not nearly up to that of the first car, suggesting that this complaint be taken up with the mill and expressing a willingness to amicably adjust the difficulty. The next day plaintiffs replied that they had sold No. 2 grade lumber, that they had advised mill as to the complaint and requested that the latter inspect the lumber and that the most satisfactory way would be to have the “rejects” laid aside and held for official inspection. Defendant, upon the day following, answered, stating that the sale was by sample, requesting

Although the express language of the agreement does not show their intent as whether it was a present sale or an agreement of sale, yet as a matter of law (Todd v. Lyon, 55 Cal. App. 67 [ 202 Pac. 899 ] ; Turner, Kuhn & Fraser, Inc., v. Jones, 61 Cal. App. 732 [ 215 Pac. 1033 ]), we are satisfied that the parties intended an agreement of sale because the letters “F. O. B.” in connection with the place of destination (24 R. C. L. 45) the provision for a sample car (Wanee v. Thomas, 75 Cal. App. 231 [ 242 Pac. 509 ]; Gardiner v. McDonogh, 147 Cal. 313 [ 81 Pac. 964 ]) and the then lack of ownership and possession of the lumber by plaintiffs (Rosenberg Bros. & Co. v. Beales, 56 Cal. App. 212 [ 205 Pac. 18 ]; Nye & Nisson v. Weed Lumber Co., 92 Cal. App. 598 [ 268 Pac. 659 ]) all indicate an intention to pass title subsequent to the execution of the agreement. “The fundamental difference between a sale, properly so called, and an agreement to sell is, that in the former case title passes, while in the latter case it does not.” (Blackwood v. Cutting Packing Co., 76 Cal. 212 , 215 [ 9 Am. St. Rep. 199 , 18 Pac. 248 ]; Rosenberg Bros. & Co. v. Beales, supra, at p. 214 of 56 Cal. App.) If title to the last four carloads vested in the defendant, the measure of damages recoverable by plaintiffs is the contract price. (Civ. Code, sec. 3310.) “Title is transferred by an executory agreement for the sale ... of personal property only , , , when the seller has completed it, prepared it for de

By its objections as to the sufficiency of the evidence to support the verdict and as to instructions given and refused, defendant has clearly presented for decision the question whether a buyer’s rejection of goods delivered under an agreement of sale by sample prevents the passage of title, even if the goods so delivered equal the sample as to quality. The plaintiffs having agreed to sell by sample, they warranted that the quality of the lumber in the last four cars would equal that of the sample car (Civ. Code, sec. 1766). The defendant had a right to inspect the last four cars before accepting them (Civ. Code, sec. 1785). The defendant never exercised this right of inspection, but, in its rejection, relied wholly upon the inspection of Means, its buyer, and of the box company, the latter’s buyer. There is nothing in the agreement which would expressly or impliedly confer a right of inspection upon the two last-named persons, or which provides that delivery was subject to their inspection. Defendant does not contend that they acted in his behalf. In fact the evidence clearly shows that they were acting on their own behalf, which, because of the difference in the orders as to grade and the adverse relations of buyer and seller, was antagonistic. Because of defendant’s utter failure to inspect, the jury was warranted in finding, as its verdict clearly implies that it did, that defendant had waived its right of inspection. Assuming that defendant did inspect the lumber, yet, if, in fact, the quality of the lumber in the last four ears equaled that of the sample car, title would pass, although defendant rejected them (Brigham v. Hibbard, 28 Or. 386 [ 43 Pac. 383 ]; Weil v. Stone, 33 Ind. App. 112 [ 104 Am. St. Rep. 243 , 69 N. E. 698 ] ; 24 R. C. L. 20; 35 Cyc. 256). The evidence as to the conformity of the last cars to the quality of the sample car was conflicting and

Defendant further complains of the overruling of its special demurrer for uncertainty as to what the custom was or is which is referred to in the allegation that delivery was “in accordance with the custom of the lumber business.” Over its objection that such testimony was not 'within the issues pleaded, plaintiffs were .permitted to introduce testimony that it was the custom of the lumber trade, when dispute arose between buyer and seller as to quality of lumber delivered, to decide it by an inspection according to the grading rules of the association, mentioned in the correspondence. “It is not necessary to plead customs or usages .of which the court will take judicial notice. Hence the rule that general customs need not be pleaded (citing Goldsmith v. Sawyer, 46 Cal. 209 ; Colman v. Clements, 23 Cal. 245 ; Waters v. Moss, 12 Cal. 535 [ 73 Am. Dec. 561 ]). Particular customs or usages relating to a particular locality or trade must, however, according to the general rule be pleaded (citing Swift v. Occidental Min. etc. Co., 141 Cal. 161 [ 74 Pac. 700 ]; Goldsmith v. Sawyer, supra; Dutch Flat Water Co. v. Mooney, 12 Cal. 534 ).” (17 C. J. 516; to the same effect, 27 R. C. L. 195; 1 Bancroft’s Code Pleading, pp. 124 and 455.) “The overruling of a demurrer to a complaint on the ground of uncertainty or ambiguity affords no ground for reversal when it is apparent from the record that the defendant was not thereby misled or embarrassed in making his defense. To warrant a reversal, it must appear that the ruling of the court affects the substantial rights of the demurrant” (2 Cal. Jur. 1014). While the court erred in overruling the demurrer, because 'the custom "related to a particular business, yet a reversal is not warranted because an inspection of the above corre

Defendant seeks a reversal of the judgment, literally following the language of the verdict, which awarded plaintiffs the sum of $2,500.59, “out of which plaintiff is to pay actual railroad transportation charges as shown by R. R.. expense bills but not any demurrage or other charges” on the ground that the italicized provision renders the verdict too uncertain and indefinite to comply with section 626 of

As modified, the judgment is affirmed, each party to pay own costs.

Knight, Acting P. J., and Cashin, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on November 25, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 23, 1929.

All the Justices present concurred,