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SALES-CONTINUED.

2.

SALES

DELIVERY-"F. O. B." An accepted order for shingles
"f. o. b. cars" means that the seller shall do all that is necessary to
load the cars, including the securing of the cars, especially in view of
the universal usage in this state. Menz Lumber Co. v. McNeeley
& Co.
223
3. SAME "F. O. B." The terms "f. o. b. California" simply means
that the purchaser was to pay the freight from California to the
place of destination. Phoenix Packing Co. v. Humphrey-Ball Co.. 396
SALES-CONTRACT-ACCEPTANCE-EVIDENCE-SUFFICIENCY. An of-

4.

5.

6.

7.

8.

fer to sell and deliver one article f. o. b. at S. and another article
f. o. b. at T., will be considered as unqualifiedly accepted by an
acceptance of both articles to be delivered f. o. b. at T., where there
was evidence of an oral acceptance of the proposal, both parties
acted upon the contract as consummated, and the purchaser re-
ceived and paid for part and claimed damages as to the balance.
Caldwell Bros. & Co. v. Coast Coal Co......
... 461

SALES-PERFORMANCE-PARTIAL PAYMENTS-EFFECT-SETTLEMENT.
Upon a sale of two articles for a lump sum, and the refusal of the
vendee to accept one of them because of alleged insufficiency, the
vendor's acceptance of a sum of money in payment for one of the
articles, as a full settlement of that portion of the contract, does
not preclude him from recovering the balance of the contract price,
nor limit the recovery to the reasonable value of the other article,
if the contract was fully performed. Caldwell Bros. & Co. v. Coast
Coal Co.

SALES-CONTRACT-WARRANTY.

461

A contract to manufacture and

sell "one 400-ton Howe coal washer," according to plans and speci-
fications, which designated it as a Howe coal washer, "Capacity
400-tons per day," and which plans were prepared and agreed upon in
detail, is not a guarantee that it is capable of washing 400 tons of
coal a day, and is not breached by want of such capacity where it was
made according to the specifications. Caldwell Bros. & Co. v. Coast
Coal Co.
461
The pur-

SAME-DAMAGES FOR BREACH OF WARRANTY-WAIVER.
chaser of a pump of a certain capacity and of "guaranteed weight
35,000 lbs." cannot recover damages because the pump delivered
weighed only 27,000 lbs., if the lighter pump actually performed
every function of a pump of the heavier weight and was equally
serviceable, durable, and valuable, as the guarantee is waived by re-
ceiving the lighter pump. Eichbaum v. Caldwell Brothers Co.... 163

SALES ACTION FOR PRICE-PERFORMANCE BY VENDOR-NECESSITY—
STATUTES-CONSTRUCTION. Civil Code of California, § 1440, providing
that, if a party to a contract gives notice that he will not perform
the same, the other party is entitled to enforce the same without
previously performing any of the conditions on his part, has no
application where the vendee gave notice of cancellation of a sale,

SALES-CONTINUED.

9.

10

11.

12.

13.

and the vendor refused to accept the cancellation and gave notice
that the goods would be shipped as per contract, after which no
further communications passed between the parties. Phoenix Pack-
ing Co. v. Humphrey-Ball Co.
.. 396

SALES-ACTION FOR PRICE-WARRANTY-BREACH-EVIDENCE-COM-
PETENCY. In an action for the price of a pump of a certain capacity
and guaranteed weight, evidence that the parties did not know the
weight of a pump of that capacity is admissible as bearing upon the
question whether the weight was necessary to insure the capacity, a
lighter weight having been accepted and damages claimed by the
defendant, Eichbaum v. Caldwell Brothers Co.

... 163

SAME DELAY IN DELIVERY-LOSSES NOT CONTEMPLATED. In an
action for the price of a pump to be manufactured and shipped
within a specified time, the defendant cannot recover loss of rentals
during delay in delivery, where there was nothing to show that
such damage was within the contemplation of the parties or actu-
ally sustained, or that there was any opportunity to rent it if it
had been promptly delivered, and it was received before the defend-
ant was ready to use it. Eichbaum v. Caldwell Brothers Co... 163
SALES-BREACH-DAMAGES-MEASURE. Upon vendee's breach of a
contract to purchase logs from the defendant at $6 per thousand,
where it appears that defendant's cost in cutting and delivering the
logs was $5 and that he subsequently made a contract with a third
party therefor at such sum, his profits would have been $1 per
thousand, and that is the measure of his damages. Peterson v.
Lone Lake Lumber Co.
72

SAME-DAMAGES-ASSESSMENT.

SALES-ACTION FOR BREACH-DEFENSES-FAILURE TO DELIVER-Ex-
CUSES. In an action to recover for breach of a contract to deliver
shingles, no specific date for delivery having been agreed upon, the
defense that washouts, mountain snows and slides prevented a de-
livery within a reasonable time is unavailable, where the plaintiff
was not complaining of a failure to deliver while such conditions
existed. Menz Lumber Co. v. McNeeley & Co.
.... 223
Upon breach of a contract to
deliver carload lots, the size of the car not being specified, damages
are assessable on the basis of an average sized car. Menz Lumber
Co. v. McNeeley & Co. ....
223
14. SAME BREACH-MEASURE OF DAMAGES. The measure of the
buyer's damages for breach of a contract for the sale of shingles,
no definite time for delivery being fixed, is the difference between
the contract price and the value of the shingles at the date of the
demand and refusal to perform the contract. Menz Lumber Co. v.
McNeeley & Co. ...

15.

SALES-CONDITIONAL

SALES-FILING-NECESSITY.

223
Rem. & Bal.
Code, § 3670, providing that all conditional sales of personalty placed
in the possession of the vendee shall be absolute as to the pur-

SALES-CONTINUED.

chasers, incumbrancers and subsequent creditors in good faith, unless
a memorandum of the sale is filed in the auditor's office within ten
days after taking possession, is designed to protect subsequent credit-
ors, and renders a sale absolute if the filing is not made as required,
although the memorandum was filed before creditors asserted their
claims. American Multigraph Sales Co. v. Jones....
619

SAVINGS CLAUSE:

Effect on repeal of statutes, see CRIMINAL LAW, 1, 2.

SCAFFOLDS:

Master's liability for injuries received from defective scaffold, see
MASTER AND SERVANT, 7.

SCHOOLS AND SCHOOL DISTRICTS:

1. SCHOOLS AND SCHOOL DISTRICTS-CONTRACTS-LIMIT OF INDEBTED-
NESS-EMPLOYMENT OF TEACHER. Under Laws 1893, p. 266, § 3, the
contract of a school district with a school teacher to teach school
for a period of eight months is void, when the limit of indebtedness
contracted in any one year payable out of the general fund had been
reached and exceeded in the aggregate the amount apportioned for
the district, as provided in said section. Wolfe v. School District
No. 2
212

2.

SAME LIMIT OF INDEBTEDNESS-NECESSARY EXPENSES. The main-
taining of a school for a period of eight months is not such a neces-
sity as to render valid a teacher's contract therefor when the in-
debtedness incurred exceeded the limit authorized by law. Wolfe v.
School District No. 2......

SELECTION:

Of jury, see JURY, 2, 3.

SEPARATE ESTATE:

Of husband or wife, see HUSBAND ANd Wife, 2, 3.

SEPARATION:

Of jury, see CRIMINAL LAW, 6, 7.

SERVICE:

Of process, see PROCESS.

SET-OFF AND COUNTERCLAIM:

1.

212

SET-OFF AND COUNTERCLAIM-CONNECTION WITH SUBJECT-MATTER OF
ACTION INJUNCTION-DAMAGES. In an action to enjoin the defend-
ant from filling up a drainage ditch constructed by the plaintiffs,
an independent claim by defendant for damages to his land by
reason of the construction of the ditch is not a proper counterclaim,
within Rem. & Bal. Code, § 265, authorizing a counterclaim for a
cause of action arising out of the transaction set forth in the com-
plaint or connected with the subject of the action. Morrison v.
Bernot
302

SETTLEMENT:

Between partners, see AcCOUNT STATED.
As affecting cause of action, see ACTION.

SHIPPING:

Tax for inspection of grain, see INSPECTION.

SHORE LANDS:

Purchase from state, see PURLIC LANDS.

SHOWING:

For change of venue, see VENUE.

SIGNATURES:

To informations, see INDICTMENT AND INFORMATION.

SPECIFIC PERFORMANCE:

1. SPECIFIC PERFORMANCE-RIGHTS OF THIRD PERSONS. Specific per-
formance of an executory contract of sale will not be decreed, as
against a subsequent bona fide purchaser who had notice of the
contract before he had fully paid for the land, where he had as-
sumed payment of a debt, incurred liability on a note, and entered
into possession and made valuable improvements in good faith; as
the enforcement of the contract would be oppressive to an innocent
third party. Bernard v. Benson

2.

3.

4.

.... 191
Plaintiff

SPECIFIC PERFORMANCE-PARTIES ENTITLED-PARTNERS.
suing for specific performance of a contract made by a corporation
to sell land to himself and one L. cannot enlarge his interest to the
exclusion of L. by reason of the fact that L. was interested in and
controlled the corporation making the sale, and aided the corpora-
tion in its defense and would be benefited by defeating the action.
Whipple v. Lee

... 253

SPECIFIC PERFORMANCE-CONTRACTS-UNCERTAINTY-PRINCIPAL AND
AGENT. A contract whereby defendant agreed to sell certain cor-
porate stock to the plaintiff, or to whomsoever he may direct, for
the sum of not less than $30,000 and as much more as it may be
sold for to any other person than the plaintiff is one of agency, in
which the price is left uncertain where no sale was made to a third
person, and therefore cannot be specifically enforced. Huston v.
Harrington

51

SAME CONTRACTS-CONFIDENTIAL RELATION. A contract by de-
fendant to sell to plaintiff certain corporate stock will not be specific-
ally enforced where the plaintiff was acting as defendant's confi-
dential agent in sole charge of the business, and failed to fully
inform the defendant of the condition of the property and of an
increase in its rental value, and part of the tender to defendant was
from money belonging to the corporation paid in advance upon such
increased rentals. Huston v. Harrington
51

SPECULATIVE DAMAGES:

See DAMAGES, 2.

SPLITTING CAUSES:

See ACTION.

SPRINGS:

Riparian rights of lower proprietor to waters of new springs, see
WATERS AND WATER COURSES, 2.

STATEMENT:

Of case or facts for purpose of review, see APPEAL AND ERROR, 14, 18;
CRIMINAL LAW, 4, 8.

STATES:

Sale of public lands, see PUBLIC LANDS.

STATUTES:

See GAMING, 1.

Appropriations by county for fair association, see AGRICULTURE.
Construction of statute authorizing assessment to pay cost of Lake
Washington Canal, see CANALS.

Construction of law prohibiting discrimination between shippers,
see CARRIERS, 16.

As violative of constitutional rights, see CONSTITUTIONAL LAW.
Inspection of corporate books and papers, see CORPORATIONS, 5, 6.
Repeal, punishment under existing laws, savings clause, see CRIMINAL
LAW, 1, 2.

Proceedings to take property for public use, see EMINENT DOMAIN, 9.
Presumptions as to statutes of another state or country, see EVI-
DENCE, 2.

Discharge on habeas corpus on ground of unconstitutional statute,
see HABEAS CORPUS.

Prohibiting sale of liquor to Indians, see INDIANS.

Construction of act regulating shipping and inspection of grain, see
INSPECTION.

Repeal of laws for control or regulation of liquor traffic, see INTOXI-
CATING LIQUORS.

Summoning and attendance of jurors, see JURY, 2, 3.

Statutes of limitation, see LIMITATION OF ACTIONS.

Construction of statute relating to liability for injury to servant
engaged in interstate commerce, see MASTER AND SERVANT, 5.
Assessment for public improvements, see MUNICIPAL CORPORATIONS, 5,
8-11.

Public improvements, see MUNICIPAL CORPORATIONS, 8, 11.

Amendment of municipal charter creating municipal plans commis-
sion, see MUNICIPAL CORPORATIONS, 1-3.

Preference right to purchase shore lands, see PUBLIC LANDS.

Action for price, construction, see SALES, 8.

Inheritance tax and rights of aliens, see TREATIES.

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