Estrella Vineyard Co. v. Butler

Citations

• 125 Cal. 232
• 57 P. 980
• 1899 Cal. LEXIS 835

Syllabus

<p>Assumpsit—Sale of Raisins upon Commission—Pleading—Election of Counts.—In an action to recover the value of raisins delivered to the defendants as commission agents, in which the first count of the complaint alleges delivery of the raisins to the defendants under an express agreement to make returns at a fixed price, the second count is in quantum valebat, and the third count alleges an agreement to sell and deliver the raisins for a fixed price, the plaintiff cannot be compelled to elect between the counts.</p> <p>Id.—Agreement fob Fixed Return—Conflicting Evidence—Support of Verdict.—It is sufficient to support a verdict in favor of the plaintiff, as to the agreement alleged in the complaint, that plaintiff was to receive a fixed return for the raisins delivered, that the testimony for the plaintiff tends to sustain the allegation, notwithstanding conflicting evidence to the contrary.</p> <p>Id.—Evidence—Written Contract by Agent in His Own Name-Proof of Authority or Knowledge Required.—A written contract with the defendants for the delivery of raisins, signed by one who was an agent for the plaintiff, in his own name, without any designation of agency, in the contract or in the signature, the authority for the execution of which was not proved, but disproved, is not admissible in evidence against the plaintiff, without such proof or without showing or offering to show that the plaintiff delivered the raisins thereunder with actual or implied knowledge of its existence. It is not enough to show that defendants on their part received the raisins under such contract.</p> <p>Id.—Quality of Raisins—Mabket Value.—Where the contract proved by the plaintiff called for the delivery of raisins of good quality in a particular market, without specifying the place where they were to be sold, evidence is admissible to show the quality of the raisins delivered, and their market value in that market.</p> <p>Instructions—Refusal of Requests.—The court may properly refuse reque