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-
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.
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,
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.
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
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. ...
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-
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
Effect on repeal of statutes, see CRIMINAL LAW, 1, 2.
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
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.
Of husband or wife, see HUSBAND ANd Wife, 2, 3.
Of jury, see CRIMINAL LAW, 6, 7.
SET-OFF AND COUNTERCLAIM:
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
Between partners, see AcCOUNT STATED. As affecting cause of action, see ACTION.
Tax for inspection of grain, see INSPECTION.
Purchase from state, see PURLIC LANDS.
For change of venue, see VENUE.
To informations, see INDICTMENT AND INFORMATION.
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
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
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
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.
Riparian rights of lower proprietor to waters of new springs, see WATERS AND WATER COURSES, 2.
Of case or facts for purpose of review, see APPEAL AND ERROR, 14, 18; CRIMINAL LAW, 4, 8.
Sale of public lands, see PUBLIC LANDS.
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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