Cutting Fruit Packing Co. v. Canty

THE COURT.— The plaintiff and the defendant entered into a contract in writing May 26, 1897, by which the defendant sold to the plaintiff 400 tons of peaches, at $30 per ton, to be delivered at railroad station in San Francisco during the season of 1897, for which payment was to be made by the plaintiff weekly and on acceptance of the peaches. After the contract had been entered into the market value of peaches rose from $30 per ton to $42 per ton, and the defendant, after delivering 129-J tons of the peaches, refused and failed to deliver any more. The plaintiff thereupon, after demand upon the defendant for their delivery, purchased the remaining 270| tons, for which it was obliged to pay $42 per ton. It seeks by this action to recover from the defendant as damages for the breach of his contract the difference between the contract price of the peaches and the amount it was compelled to pay for those which the defendant refused to deliver,—viz., $3,246. The cause was tried without a jury, and upon findings of fact in accordance with the claim of the plaintiff, judgment was rendered in its favor. The defendant has appealed direct *695 ly from the judgment upon the judgment-roll, without any bill of exceptions. 1. The complaint alleges the execution of the contract between the plaintiff and the defendant, setting forth a copy of the same; the breach of the contract by the defendant in its refusal to deliver a portion of the peaches; the damage sustained therefrom by the plaintiff, together with the manner in which such damage was caused,—viz., by being compelled to pay more than the price at which the defendant had agreed to furnish the peaches. This was a sufficient statement of a cause of action, and if the facts thus alleged were admitted by the defendant or sustained at the trial, the plaintiff was entitled to judgment. The objections to the complaint urged by the appellant relate to the manher in which the facts are stated, and not to an entire absence of any material fact. These objections should have been presented to the superior court by a special demurrer, but as such demurrer was not interposed they must be deemed to have been waived. Any variance between the terms of the contract, as alleged in the complaint and as contained in the copy attached thereto, was only an ambiguity or uncertainty, which is removed by the finding of the court that the copy as set forth in the complaint is -the contract into which the parties entered. Defective allegations in the complaint are cured by a verdict, and all intendments will be made in support of the judgment thereon. (San Francisco v. Pennie, 93 Cal. 465; Kimball v. Richardson, 111 Cal. 386; Hughes v. Alsip, 112 Cal. 587.) The facts found by the court are sufficient to sustain the judgment, and are within the issues presented by the complaint. If the defendant had any objection to, the evidence offered in support of the allegations of the complaint, either on the ground of variance or that the facts sought to be established were not pleaded with sufficient definiteness, it was incumbent upon him to make such objection at the trial. In the absence of any bill of exceptions it must be assumed that the evidence presented in support of these findings was competent to establish the facts alleged, and was received without any objection, and was sufficient to sustain each of the facts found. *696 2. In his answer the defendant admits the delivery by him of 129½ tons of peaches, and alleges that there is still unpaid therefor and due to him from the plaintiff $20.96. He also sets up a counterclaim against the plaintiff for $392.80, for peaches sold and delivered by him to the plaintiff. The court finds that the plaintiff paid the defendant for the 129½ tons of peaches delivered by him, and it also finds that “the defendant is entitled by way of offset to the claim of plaintiff to the sum of $371.84, for other peaches sold and delivered by the defendant to the plaintiff and being the peaches referred to in the counterclaim set up by the defendant. ’r Judgment is thereupon directed in favor of the plaintiff for the difference between $371.84, the amount of defendant’s counterclaim, and $3,246, the amount of damage sustained by the plaintiff. •It is contended by the appellant that by reason of the failure of the court to make a finding of fact upon the issue presented by the counterclaim, the judgment must be reversed. It is a sufficient answer to this contention to say that the record does not show that the defendant offered any evidence in support of his counterclaim, and that, as a failure of the court to make a finding thereon would not justify a reversal (Winslow v. Gohransen, 88 Cal. 450; Rogers v. Duff, 97 Cal. 66; F. A. Hihn Co. v. Fleckner, 106 Cal. 95), its finding in his favor for a less amount than claimed must be held to be all that the evidence offered in support of his claim would justify. Moreover, this finding is a decision upon the issue in favor of the appellant, and it is a general rule that courts will not listen to a party who seeks the reversal of a judgment in his own favor, unless he can make it appear that the judgment should have been for a greater amount or a wider scope. Error is not to be presumed, and if the appellant would contend that the court should have found for his counterclaim a greater amount, it was incumbent upon him to cause the record to show that" such finding was required by the evidence. 3. The court filed its findings of fact and conclusions of law January 27, 1899, in which judgment was ordered in Tavor of the plaintiff for $2,874.16, with interest thereon, from the date of filing the complaint,—viz., February 24, 1898. The clerk did not enter the judgment, however, until January 12, *697 1901, at which time he entered a judgment in favor of the plaintiff for $3,454.26, that sum being the amount of the damages found by the court, together with interest thereon at seven per cent per annum from the date of the decision until the date at which the judgment was entered of record. The court properly allowed the plaintiff interest upon the amount of damage sustained by defendant from the date of filing the complaint (Civ. Code, sec. 3287; Pacific Mutual Ins. Co. v. Fisher, 106 Cal. 224; Lane v. Turner, 114 Cal. 396); and the action of the clerk in adding the interest from the date of the decision to the entry of the judgment was correct. (Code Civ. Proc., sec. 1035; Golden Gate Mill Co. v. Machine Works, 82 Cal. 184; Barnhart v. Edwards, 128 Cal. 575..) 4. In the judgment as recorded the clerk has written at its head, “January 27th, A. D. 1899,” the date at which the decision was filed, and which upon the face of the judgment appears to be its date; and it is urged by the appellant that inasmuch as the judgment directs that plaintiff shall recover from the defendant the sum of $3,454.26, with interest thereon at the rate of seven per cent per annum “from the date hereof till paid,” the plaintiff will recover a greater amount of interest than he is entitled to receive. It- clearly appears from an examination of the judgment-roll that the clerk computed the interest up to the date of the entry of the judgment, and that by the insertion of the words, “from the date hereof till paid,'” he intended to refer to the date of such entry. The prefatory date, “January 27th, A. D. 1899,” is no part of the judgment, but was evidently intended only as a connecting link between the decision and the entry of the judgment. The date of the judgment is the date of its entry. These words, however, create an ambiguity on the face of the judgment which the appellant is entitled to have removed. The superior court is therefore directed to cause the aforesaid prefatory date, “January 27th, A. D. 1899,” to be ex.punged from the face of the judgment. In all other respects the judgment is affirmed. As the correction herein directed would have been made by the superior court upon a mere suggestion therefor, the costs of the appeal must be borne by the appellant. *698 A petition for a hearing in Bank was filed, and the following opinion was rendered thereon on the eighteenth day of February, 1904:—