Goldman v. Bashore

Foote. C. The plaintiffs brought this action to recover from the defendant $1,639.07, dué upon an account for goods, wares, and merchandise sold by them to the defendant, and for money paid, laid out, and expended to her use, and for money advanced to her. She answered, alleging, by way of defense, that she had made a contract with the plaintiffs, by which they agreed to purchase from her at a certain price per cord not less than two thousand, nor more than two. thousand five hundred, cords of wood, to be delivered at a certain place within a certain time; that she agreed to receive as part pay for the same merchandise at the rate of thirty-five dollars upon the one hundred- dollars’ worth of wood delivered, and that she did receive such goods, wares, and merchandise in part pay for wood which she delivered, and not otherwise. And that although she complied with her contract, and delivered two thousand cords of wood subject to the plaintiffs’ order at the time and place agreed upon, that they refused to take the wood, or pay for it, or comply with the contract. She further claims that by reason of their failure to comply with the contract, she has been damaged in the sum of three thousand dollars, for which, and costs, she asks judgment against them. The plaintiffs had judgment for only a part of their claim, from which, and an order refusing a new trial, the defendant appeals. Defendant claims, among other things, that the court [149] erred in. refusing to grant her motion for judgment on the pleadings on what she denominated a cross-complaint, which the plaintiffs did not answer. But the alleged cause of cross-complaint was not pleaded as such. It is couched in this language: “And for a further and separate answer, the defendant files her cross-complaint, and alleges.” A similar pleading was treated as an answer in Shain v. Belvin, 79 Cal. 262. No error was therefore committed in denying the motion. It is further urged that an instruction given by the court was erroneous. There is no bill of exceptions here to make it evident that any such instruction was ever given, nor does the statement show it. The fact that the specification of “ errors of law ” at the end of the body of the statement recites that “the court erred in instructing the jury as follows,” setting out the language of the alleged instruction, is not sufficient. It cannot be considered as evidence that the court granted any such instruction. An unsigned letter was allowed to go to the jury on the part of the plaintiffs, which is claimed to have been improperly admitted in evidence, because it had no signature, and did not indicate either the place or the person from whom it emanated. . The proof was, that the defendant had agreed by a written contract to deliver to the plaintiffs the amount of wood, and at the price and place as set out in her answer, which the plaintiffs were to receive under certain conditions. She was to receive thirty-five dollars of the price of each hundred cords of wood in merchandise as part payment therefor, and that the debt for which she was sued was contracted by her under that contract; that she sent an order to plaintiffs to receive from another party, one Stokes, for her, by virtue and in fulfillment of her contract, fifteen hundred cords of wood; that the plaintiffs accepted the order, with the reserva [150] tion that eight hundred dollars cash which had been already advanced by them to the defendant should be deducted from the price of the wood first received on the order, and applied to her account. Afterwards this written letter, forbidding them to take any of that wood, was received by them, and supposing it to be from Stokes, the owner of the fifteen hundred cords of wood, they did not take it. There was evidence which went to show that their view of the matter was correct, and that the letter was written by an attorney at law for StokeS, and was intended to have the effect it did. It is plain that this letter was therefore admissible as tending to show that the plaintiffs were not to blame for not taking the fifteen hundred cords of wood of Stokes, as part of the defendant’s delivery of wood under her contract, and that she could not claim any damage from their failure to receive such wood. It is also urged as error that the defendant, when a witness, was not allowed to answer the question, “ What were you obliged to take for the wood? ” the object being to show that she had lost the difference between the agreed price of the wood and the amount she was compelled afterward to sell it for, by reason of the plaintiffs’ refusal to take it. But even if this was erroneous, it was harmless, because she had already stated, without objection, that her loss was about $3,750, and that it was the difference between what she was to get for the wood from the plaintiffs and what she was at last obliged to take for it. And the offer made after that, on her part, again to prove by herself that as to which she had just testified, as above stated, was properly refused by the court, for the reason above- stated. Perceiving no prejudicial error, we advise that the judgment and order be affirmed. Hayne, 0., and Vanclief, C., concurred. [151] The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed.