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District Court of Appeal, Fourth District, California.

WHITACRE et al. v. HALL et al.

Civ. 2380

Decided: August 05, 1940

Harry W. Horton, of El Centro, for appellants. Whitelaw & Whitelaw, of El Centro, for respondents.

In this petition for rehearing the appellant William Shapiro, Inc., contends that it is entitled to a refund from the guaranteed advance of $275 per car of an amount equal to the value of the goods which were subsequently damaged, on the theory that the contract called for the delivery of merchantable produce and that to this extent this appellant never received such letuce. As pointed out in our opinion in this case, 104 P.2d 401, the 45 cars of lettuce were, in accordance with the contract, delivered to this appellant at El Centro with the necessary bills of lading and certificates of inspection, all of which were there accepted by this appellant. This entire matter is controlled by the interpretation of the contract, all of which is sufficiently covered in our previous opinion.

It is further contended that under another provision of the contract this appellant was entitled to a commission of 8 per cent on the selling price of the lettuce, that the railroad claims which were awarded to the respondents were a part of this selling price, and that our opinion should be so modified as to allow this appellant to recover 8 per cent of the amounts realized upon the railroad claims. In our opinion we referred to the manner in which certain accounts were made to the defendants in connection with an issue as to fraud and deceit which was raised as to the other appellant. In the accounts thus made this appellant seems to have made returns that it had sold the damaged goods at the same prices as the good lettuce in the respective cars. In connection with the accounts so made this appellant charged its commission of 8 per cent on this supposed selling price. It is certainly not entitled to the 8 per cent commission on both amounts, relating to the same goods, and nothing is brought to our attention from which we can tell whether or not appellant has been prejudiced in this regard. In the absence of such a showing we cannot arbitrarily order the substitution of the one amount for the other.

The petition for a rehearing is denied.