M. A. Newmark & Co. v. Smith

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 15, 1915.

This is an action to recover damages alleged to have been sustained by reason of defendant's partial default in delivering a quantity of beans in accordance with his contract so to do. The verdict of a jury called to try the case was in favor of defendant. Judgment followed in accordance therewith, from which, and an order denying its motion for a new trial, plaintiff appealed. On July 10, 1911, plaintiff bought from defendant one thousand bags of "choice, recleaned, small white beans of the crop of 1911," to be delivered in October, f. o. b. cars at Santa Maria, California, for which it agreed to pay $3.21 1/4 per hundredweight; and on the 18th of the same month bought a further like quantity of the same kind of beans for like delivery at the price of $3.25 per hundred. These contracts were evidenced by bought and sold notes whereby the one agreed to buy and the other agreed to sell. In October defendant shipped to plaintiff at Los Angeles two lots of beans, one consisting of 788 sacks delivered, as stated, on account of the first contract, and the other lot consisting of 673 sacks, which shipment was by defendant assigned as delivered under the second contract. Payment for both…