Silva-Bergtholdt Co. v. J. H. Flickinger Co.

The defendant has appealed from the judgment of the trial court herein in favor of the plaintiff.

The complaint alleges that the plaintiff sold the pears growing upon its lands in the year 1923 to the defendant at the agreed price of twenty-five per cent “over season’s opening price of the Pear Growers Association”; that “the Pear Growers Association’s opening price for the season of 1923 was $50 per ton for said pears, plus $2.50 a ton service charge”; and that plaintiff delivered to defendant sixty-five and a half tons of pears; that the total purchase price of such pears was the sum of $4,263.68, of which only $3,174.61 had been paid. The prayer is for judgment in the sum of $1,089.07.

The answer admits the contract and the opening price of $50 a ton, but denies that the service charge of $2.50 a ton fixed by the association is applicable to the contract of the parties to this action, and alleges that only 129,206 pounds of pears were delivered; that, of such quantity, 20,460 pounds “were wormy, or otherwise defective, were not according to contract, were not fit for use, and could not be, and were not used, by defendant”; that “defendant incurred expense, by way of freight…