California Canneries Co. v. Great Western Lumber Co.

Plaintiff brought this action to recover damages for alleged breach of a contract to furnish material for making boxes. Defendant, after demurrer (general as to the point here involved), overruled, denied generally and specifically the allegations of the complaint, and by way of cross-complaint set up a common count for goods, to wit, box-shook, sold and delivered. The trial court found in favor of plaintiff as prayed, but offset the damages by the amount claimed in the cross-complaint and entered judgment accordingly. Defendant appeals on the judgment-roll alone.

The complaint alleges the execution of the contract between the plaintiff and the defendant, setting forth a copy, and that the delivery of the box material was to he made in carload lots, at the cannery of plaintiff in San Francisco. Then occurs the following allegation: “That defendant has failed, neglected and refused to deliver [certain described material], to plaintiff’s damage in the sum of $4,167.94.” This is followed by the prayer for judgment.

Under the terms of the contract, the defendant agreed to sell to plaintiff, and the plaintiff undertook to purchase, receive, and pay for, upon the specified terms and…