Gulick v. E. Clemens Horst Co. — 39 Cal. App. 376

Majority

p. 376

[Civ. No. 1888.

Third Appellate District.

January 15, 1919.]

FRED GULICK, Respondent, v. E. CLEMENS HORST COMPANY (a Corporation), Appellant.

Headnote

Sales — Action for Price of Horses and Mules — Conflict of Evidence.—In this action for the price of certain horses and mules, purchased by the defendant for the allied powers in the war against Germany, the defense being that the sale was conditional upon approval and acceptance of the stock by representatives of the allied powers, findings by the trial court on conflicting evidence that the sale was absolute and not conditional, were sufficiently supported, and were therefore binding on the appellate court.

APPEAL from a judgment of the Superior Court of Butte County. H. D. Gregory, Judge. Affirmed.

The facts are stated in the opinion of the court.

W. H. Carlin for Appellant.

Henry Ingram and George F. Jones for Respondent.

The action was brought to recover the value of a certain number of horses and mules alleged to have been sold by plaintiff to defendant. There is no dispute that appellant was engaged in the purchase of certain animals for the use of the “entente” powers in the prosecution of the war against Germany, nor is it disputed that one W. Hill was the authorized agent of the defendant for the purchase of horses and mules for such purpose.

The only serious contention made by appellant is that the sale was a conditional one, dependent upon the approval and acceptance of said stock by the representatives of said allied powers, and that plaintiff and said Hill were parties to a conspiracy to defraud appellant by imposing upon it animals that were unsuitable and unfit for the purposes for which they were to be purchased.

As to these contentions it may be said that both plaintiff and Hill testified positively that the sale was absolute and not conditional, that there was no understanding or agreement that the payment of the purchase price was to depend upon the approval and acceptance by said representatives. They

p. 377

both, also testified to facts from which the inference necessarily follows that neither had any purpose or intention to defraud appellant in the respect indicated or, indeed, in any manner at all, and that the sale and purchase were made in good faith and as claimed by respondent.

The case is, indeed, one of conflicting evidence, and wherein the findings of the lower court by reason of a sufficient showing are binding upon the appellate court.

We have read the record and find therein sufficient evidence to support the material findings. There is no necessity for reciting said evidence, as it must be familiar to both parties.

The judgment is accordingly affirmed.

Chipman, P. J., and Hart, J., concurred.