Jesse R. McNames, Inc. v. Henry C. Bergmann, Inc.

This is an appeal from a money judgment in an action for breach of contract.

On July 11, 1956, the parties in this action entered into a written agreement whereby appellant agreed to sell and respondent agreed to buy a certain 1,250-gallon used milk tank which appellant expected to get as a trade-in from a customer at Tempe, Arizona. The tank was to be delivered to respondent f.o.b. at appellant’s plant in South Gate, California, and respondent was to pay appellant the sum of $2,480 which included $1,800 for the tank; $350 for installing it on respondent’s truck; federal excise tax and California sales tax. Of the total amount $608 was paid at the time of the execution of the contract, the balance to become due and payable on delivery.

The purchase order, which became the contract, provided:

Appellant contends that the sale of the tank was conditional upon its being procured from the customer in Arizona. There is substantial evidence to the contrary.

True, respondent testified upon cross-examination that he understood that the tank was a used one; that it was said to be some place in Arizona; that he understood that the tank was going to be received by appellant as a trade-in…