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District Court of Appeal, Second District, Division 2, California.


Civ. 14977.

Decided: December 03, 1945

J. La Marr Butler, of Los Angeles, A. H. Brazil, of San Luis Obispo, and William J. Clark, of Los Angeles, for appellant. Leo B. Ward, John M. Hines and John A. Holland, all of Los Angeles, for respondent.

Plaintiff recovered a judgment against defendant for damages growing out of the failure of the latter to deliver a quantity of eucalyptus wood which had been purchased from him by plaintiff. Defendant has appealed from the judgment.

The material portion of the contract which is the basis of the action reads as follows: ‘For and in consideration of the promises and agreement of the parties hereto, and of the moneys paid and to be paid as hereafter set out, H. R. Van Horn, hereby sells and conveys to W. H. Woodbine, all of the eucalyptus wood located on the property to [sic] Messrs Garrett and Hollister, twelve miles west of San Luis Obispo, California, consisting of of three thousand or more cords, to be cut in sixteen and twenty-four inch lengths and all wood over five inches in diameter to be split, at the purchase price of nine ($9.00) dollars per cord, delivered F O B trucks of W. H. Woodbine. A statement is to be rendered by Woodbine to Van Horn of the number of cords of wood received by him during each month and payment therefor to be made ten days thereafter.’

As grounds for a reversal of the judgment appellant asserts that the contract is void for want of mutuality and for uncertainty, that the findings of fact are not sustained by the evidence, and that the court erred in receiving evidence to which objections were offered.

1. The contract is not lacking in mutuality. The contract is not subject to the construction placed upon it by appellant, to wit, that respondent was not bound to take any part of the wood other than that which was actually delivered to him and that the contract is for that reason wanting in mutuality. The instrument is not, as claimed by appellant, a contract by which he agreed to sell but respondent did not agree to purchase. On the contrary, the words ‘hereby sells and conveys' are definite words of immediate conveyance whereby appellant sold the word to respondent and title passed to the latter upon the signing of the contract. As the owner he became entitled to delivery and was required to pay for it according to the terms of the contract. If he had refused to accept and pay for any part of the wood appellant could have maintained an action against him for the purchase price. Civil Code, sec. 1783.

A document reciting the proximate quantity of merchandise sold, the price and terms of payment, and a definite description of the articles sold, contains all essential elements of a contract. Kaplan v. American Cotton Oil Co., 5 Cir., 12 F.2d 969, 970. The word ‘convey’ has both a technical and a popular meaning. Technically, it applies to the legal title to real estate. Popularly, it may apply to the equitable title to real estate, or to personal property, and may be read in the sense of ‘assign,’ ‘sell,’ or ‘transfer.’ Crookshanks v. Ransbarger, 80 W.Va. 21, 92 S.E. 78, 83. The essentials of a sale are: (1) An article which is transferred from the seller to the buyer; (2) a price in money paid or promised. ‘To suppose a sale without a transfer of the property in the thing which forms the object of the sale is simply to suppose an impossibility. * * * The expression ‘to sell,’ and the expression ‘to transfer property for a price in money,’ are convertible; and, as a consequence, it is no more possible to sell without transferring ownership than it is possible to sell without selling, or to transfer ownership without transferring ownership, or to do any other thing without doing it.' Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 46 So. 193, 196.

None of the cases cited by appellant supports his objection to the contract. For example: California Refining Co. v. Producers Refining Corp., 25 Cal.App.2d 104, 76 P.2d 553, was one in which the refiner agreed to refine all oil delivered to it by the producer, but the latter did not agree to furnish any quantity of oil whatsoever to the refiner. It was a mere conditional acceptance of the terms specified for refining oil by the refiner in the event the producer saw fit to deliver oil for that purpose, but there was no mutuality of agreement with respect to the delivery of oil. It will not be necessary to refer at length to the federal cases cited by appellant for the reason that in each case there was a promise on the part of one party with no corresponding promise on the part of the other, the quantity of merchandise to be delivered having been conditioned in those cases by the desire or whim of the purchaser.

2. The contract is not void for uncertainty. The property sold is specifically described as ‘all’ of the eucalyptus wood located on certain property, which is sufficiently identified, consisting of 3,000 or more cords. The purchase price per cord was specified and respondent agreed to pay therefor at a time certain, to wit, ten days after the end of each month in which wood was received by him. The contracts construed in the cases cited by appellant were indefinite and uncertain as to one or more requirements, as examples: Hardman v. Polino, 113 W.Va. 404, 168 S.E. 384, 89 A.L.R. 1356, a contract to advance money for the development of lands, the amount to be advanced not being stated; Factor v. Peabody Tailoring System, 177 Wis. 238, 187 N.W. 984, a contract to deliver a suit of clothes which did not describe the material of which the suit was to be made; Bennett v. Clark County, 201 Ill.App. 222, the contract specifying a rate for certain items and providing that others would be done ‘at fair and reasonable prices.’

Respondent's promise to pay the agreed price per cord for the wood was not dependent on a condition that he send trucks to haul the wood, nor did the contract reserve to him an unlimited option as to the time when he would send his trucks for the wood. Section 1657 of the Civil Code provides that ‘If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.’ Hence if respondent had no provided a sufficient number of trucks to haul the wood from the property within a reasonable length of time appellant could have sued for the purchase price.

The words ‘F O B trucks of W. H. Woodbine’ are not inconsistent with the immediate passage of title and do not impair respondent's ownership. ‘F O B’ is so commonly used in commercial transactions that its meaning is well known in business and in law. No uncertainty is created when it appears in written instruments. As used in the contract in question here, those initials mean that the price of $9.00 per cord which appellant was to receive included the loading of the wood on respondent's trucks by appellant.

The language of the contract manifestly denotes an absolute transfer of title to the wood and nothing appears in the document to negate the clear intent of the parties to that effect.

Any uncertainty as to the amount of wood that was to be cut in sixteen or twenty-four inch lengths operated to the benefit of appellant. Obviously it would cost less to cut the trees in the greater lengths. Appellant could have tendered the wood in such proportions of the specified lengths as he desired and respondent would have been compelled to accept it as offered. The latter is the only party who could have raised the question f uncertainty and he has not done so.

3. The findings of fact are sustained by the evidence. The court made findings of fact as to the number of cords of wood on the premises, distinguishing between trees that had been severed and those that remained standing, the former being referred to as ‘wood’ and the latter as ‘timber.’ The court also made findings as to the number of cords received by respondent, the number not delivered to him, and the number appropriated by appellant to his own use. The court also found that the failure of respondent to remove the wood was occasioned by appellant's failure to obtain a splitter and to cause the wood to be split and ready for removal as required by the contract. All of these findings are sustained by competent evidence. The evidence is conflicting upon some points and this court will not attempt to analyze it nor to determine the weight to be given to the testimony of any witness. The trial judge having weighed the evidence and rendered its findings of fact thereon, his determination will not be disturbed by the appellate court. For a discussion and citation of cases on this question see our opinion in Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777, 163 P.2d 756.

We have given no attention to appellant's censure of the evidence given by respondent personally as being unworthy of belief. All of the matters on which he testified—the signing of the agreement, the amount of wood on the property, its market value, and other essential facts to support the judgment—were proved by other witnesses.

4. Other objections to the findings. Findings of fact are to be liberally construed and such minor inconsistencies as may be found will be resolved in favor of upholding rather than of defeating the judgment. McAlvay v. Consumer's Salt Co., 112 Cal.App. 383, 391, 297 P. 135; Wilson v. Mattei, 84 Cal.App. 567, 574, 258 P. 453. To the end that injustice shall not result to litigants, if a finding of fact is erroneously described as a conclusion of law it will nevertheless be considered to be a finding of fact. Roloff v. Hundeby, 105 Cal.App. 645, 651, 288 P. 702; Gossman v. Gossman, 52 Cal.App.2d 184, 191, 126 P.2d 178; Kramer v. Watnick, 63 Cal.App.2d 308, 310, 146 P.2d 947; Linberg v. Stanto, 211 Cal. 771, 776, 297 P. 9, 75 A.L.R. 555. If a finding is ambiguous and uncertain yet, since all presumptions are in favor of the judgment of the trial court, it will receive a construction that will sustain the judgment. Peterson v. First National Bank, 101 Cal.App. 532, 539, 281 P. 1104; Schomer v. R. L. Craig Co., 137 Cal.App. 620, 628, 31 P.2d 396.

The alleged inconsistencies in the findings complained of by appellant dissolve upon examination. The court found that there were approximately 4000 cords of wood fallen; that respondent received 246 1/313 cords and appellant converted 159 cords to his own use. Subtract the total of these two amounts from the 4000 cords and 3594 2/323 cords remain. The court found that at the time of the trial there were 3526 cords on the property, or 68 2/323 fewer than the computation indicates should have been there, the difference being in favor of appellant. Respondent charged in his complaint that appellant had unlawfully converted and disposed of 500 cords to his own use. In response to this allegation the court found that appellant had converted 159 cords and not 500. The court also found that appellant had appropriated to his own use, by failure to deliver to respondent, said 3526 cords which had been severed from the land and which were covered by the contract. These findings are sustained by the evidence.

Appellant complains that the finding that appellant is not able to respond in damages is a legal conclusion. Even so, it is followed in the same paragraph by detailed findings of fact as to appellant's assets, the property owned by him and its value, the incumbrances against it, and his other debts and liabilities, from which it appears that a money judgment would be uncollectible.

5. Qualifications of witness. Objection is made that one of the witnesses was not qualified to testify concerning the quantity of wood on the property. Lack of qualification, if any, affected the weight of his evidence and the trial judge gave such consideration to it as he deemed it to deserve. The point is immaterial, however, in view of the fact that appellant's own evidence did not differ materially as to the number of cords of wood from that of the witness whose qualifications are questioned.

6. The measure of damages. Appellant enumerates in his brief several rules for the ascertainment of damages for breach of contract, among them: (1) that where a contract for the sale of personal property is broken by the vendor, the measure of damages is the difference between the contract price and the market value at the time and place of the contract; (2) that the person injured shall receive compensation commensurate with his loss, and no more; (3) that damages must be incidental to the contract and occasioned by its breach; (4) that damages must be certain both in their nature and the cause from which they proceed; (5) that the purchaser can recover no more than it would cost him to supply himself with the same property by resort to the market. The court found that the wholesale market price of the wood at the date of the contract upon the premises on which the wood in question was located was $10.00 per cord, or one dollar more per cord than the contract price. Judgment was rendered for that amount for the number of cords which appellant had converted to his own use and for that which remained in his possession and which he refused to deliver to respondent. Other items of damages were awarded for losses which respondent had suffered. There is no error in the findings as to damages.

7. The injunction. When the action was commenced respondent filed affidavits upon which the court issued a temporary restraining order whereby appellant was enjoined from selling the wood or converting it to his own use pending the hearing of the simultaneously issued order to show cause why a preliminary injunction should not be granted. Upon the return day appellant filed an affidavit in opposition to the order and oral evidence was heard by the court, whereupon a preliminary injunction was issued as prayed. This was an appealable order (Code Civ.Proc. § 963) but there was no appeal. It remained in force until the entry of the judgment from which the present appeal was taken. In view of the finality of said order we do not consider the sufficiency of the affidavits on which it was issued and it need not be considered further. See Ots v. Superior Court, 10 Cal.App. 168, 169, 101 P. 431. The judgment ordered that the preliminary injunction remain in force only as to 500 cords of wood, releasing the remainder from the effect of the previous order, and directed that the preliminary injunction, as thus modified, should remain in force until the money judgment in favor of respondent was satisfied, or until further order of the court.

The language of the judgment continuing the modified preliminary injunction in effect is inept. The judgment would have been in more appropriate form if it had contained a proper injunctive provision without attempting to continue the former order in force by reference. But it is apparent that the court intended the order to be a permanent injunction after trial and it will be so construed.

We have referred to the evidence concerning appellant's assets and liabilities and to the finding that his financial condition was such that the judgment for damages could not be enforced. Appellant did not maintain a bank account, all his transactions having been conducted by payment in cash.

Title to the wood, as we have stated, was vested in respondent. By reason of appellant's acts respondent had been unable to obtain possession of it and appellant had converted a portion to his own use. The complaint alleged that the business of selling wood fuel is peculiar and unique; that on account of the condition of the wood fuel market in California it is impossible to purchase in the open market well seasoned eucalyptus wood of the grade, character, and quality contracted for by respondent, by reason of which he would suffer great and irreparable loss and damage unless appellant was enjoined from disposing of the wood to his own use; that appellant's financial condition was such that he could not respond in damages; that the remedy at law was inadequate and a multiplicity of suits would result if respondent were required to maintain an action for each conversion. The complaint stated a sufficient cause of action to warrant an injunction and the evidence and findings sustained the allegations.

An allegation of irreparable damage is a legal conclusion which, standing alone, is insufficient to warrant the granting of an injunction, but if facts are alleged from which the conclusion may be drawn the injunctive remedy may be applied. Eames v. Philpot, 72 Cal.App. 151, 157, 236 P. 373. If repeated acts of wrong are done or threatened and there is a legal remedy which is adequate for each single act, an injunction will nevertheless issue to prevent the wrong and to avoid a repetition of similar actions. Id., 72 Cal.App. at page 158, 236 P. at page 376; Kellogg v. King, 114 Cal. 378, 387, 46 P. 166, 55 Am.St.Rep. 74; Slater v. Pacific American Oil Co., 212 Cal. 648, 655, 300 P. 31. Absolute and complete insolvency need not be shown. Paige v. Akins, 112 Cal. 401, 412, 44 P. 666.

8. Appeal from order denying new trial. Appellant attempted to appeal from the order denying a new trial. Such an order is not appealable. Kellett v. Marvel, 6 Cal.2d 464, 476, 58 P.2d 649; Joseph v. Vogt, 35 Cal.App.2d 439, 442, 95 P.2d 947; Grimes v. Nicholson, 71 Cal.App.2d 538, 162 P.2d 934.

The judgment is affirmed. The purported appeal from the order denying a new trial is dismissed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.

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