De Brito v. San Diego Packing Co.

This action was brought by plaintiffs and appellants against defendant and respondent for the purpose of recovering the amounts of certain payments totaling $4,067.21 claimed by them to have been made only as “deposits” upon the total purchase price of $12,000, in pursuance of the terms of a written contract for the purchase of a certain fishing boat named “Shina No. 2”. Upon the execution of the contract, July 21, 1928, possession of the boat was delivered to appellants. The complaint in effect purports to set forth a rescission of the contract, and a right to recover the amounts of said payments on that ground, and also upon the ground that respondent wrongfully retook said boat and resold it at a time when appellants were not in default under the terms of the contract; that by reason thereof appellants were entitled to a return of the money paid by them, together with interest thereon from November 1, 1928, at the rate of seven per cent per annum. A copy of the contract is attached to the complaint, referred to and marked exhibit “A”.

Title to the boat remained in the respondent until the full sum of $12,000 was “ . . . deposited with it as and for the purchase…

Because of an apparent lack of knowledge or misunderstanding of the records of this court on the part of counsel for appellants as shown in their petition for rehearing, we deem it advisable to call attention to the following:

This cause was placed on the calendar for oral argument on June 14, 1932. There were present on the bench at that time Mr. Presiding Justice Barnard, Mr. Justice Jennings and Mr. Justice pro tempore Scovel. The minutes of the court show that before the calling of the calendar the following occurred: “Presiding Justice Barnard announced that unless objection was offered, it would be deemed as stipulated that Justice Marks and any justice pro tern., may participate in the decision of any cause on this calendar.”

The minutes of that day contain the following concerning this case: “4 Civil No. 904, De Brito, et al vs San Diego Packing Co. Hearing on merits. Wm. H. Wylie, Esq., appeared for appellants and was granted leave to file reply memorandum. Jas. G. Pfanstiel, Esq., appeared for respondent and was granted 5 days to reply thereto. Cause then to be submitted.” The cause was not orally argued, and no objection was made to the presumed stipulation as…

I concur in the denial of the foregoing petition because on the merits the judgment should be affirmed. *Page 68 I disapprove the holding of the majority opinion of the District Court of Appeal that the specifications of error are insufficient. Moreover, the attorney for respondent specifically approved them and this too should foreclose the opposite position.