Keller v. Sutrick

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action to recover the sum of $1,075, the price of a quantity of grapes sold by the plaintiff to the defendant. The defense is, that the plaintiff, by his agent, expressly warranted the grapes sound and in good condition; that they were not sound, and he notified plaintiff’s agent to take them back, which he refused to do. These averments are denied in the replication. The defendant sold the grapes for seven hundred and twenty-nine dollars and [473] thirty-five cents, and tendered it to the plaintiff. The case was referred, the referee filed his findings and report in favor of the plaintiff, and judgment was rendered accordingly, from which, and the order refusing a new trial, the defendant appeals. The first error assigned is that the findings of the referee are contrary to the evidence. We have examined the evidence carefully and find it very conflicting, especially upon the main question, whether there was an express warranty. We do not think it presents such a case as would justify us in setting aside the findings of the referee, who heard the witnesses testify, and is therefore better able to judge of the weight which their testimony is entitled to. The next error assigned is that the report of the referee was not filed within ten days after the testimony was closed, as required by Sec. 187 of the Practice Act. The testimony was closed July 23d, and the report was not filed until September 5th. This provision, as to the time within which the referee must file his report, we regard as merely directory; and a failure to file within the time prescribed cannot have the effect of invalidating the report or the judgment' rendered thereon. Ho such consequences are declared by the statute. (Vermule v. Shaw, 4 Cal. 214.) The judgment is affirmed.