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(67 Cal. 477)

BULLARD v. STONE. (No. 9,821.)
Filed September 25, 1885.

1. MARKET WA UE, PROOF OF. Evidence reviewed, and held, that the market value of the wheat, the subject of the controversy, was sufficiently shown by the evidence, and in conformity with the rule prescribed by statute. Civil Code Cal. 3354. . BREACH OF CONTRACT-RECOVERY OF MONEY PAID. Money paid on a contract, in accordance there with, may be recovered upon a breach by the other party to the contract. 3. INCOMPETENT EVIDENCE–ADMISSION witHouT OBJECTION NOT ERROR. Incompetent evidence, if not objected to when offered, is not erroneously admitted so as to warrant a reversal. 4. INSTRUCTIONS GIVEN IN SUBSTANCE—REFUSAL NoT ERROR. Where instructions are asked, if they have already been given in substance, a refusal to give them is not error.

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Commissioners' decision. Appeal from superior court, Tehama county. John F. Ellison and Hart & White, for appellant. F. C. Lusk, for respondent. SEARLs, C. This action is brought to recover damages for violation of a contract to sell and deliver a quantity of wheat. Cause tried by a jury. Werdict and judgment in favor of plaintiff for $2,000. A motion for new trial was made and denied. The appeal is from the judgment and from an order denying a new trial. On or about the fifth of December, 1882, the defendant entered into a contract with plaintiff for the sale and delivery by the former to the latter of 7,976 sacks of wheat, aggregating 1,097,161 pounds. At the date of the contract, 4,400 sacks, containing 602,800 pounds, were at Squaw Hill. A further quantity of 1,045 sacks, containing 148,390 pounds, and constituting a separate lot of wheat, was also at Squaw Hill. One thousand two hundred and forty-six sacks, containing 167,490 pounds, were at Willows, and the remainder, consisting of 1,285 sacks, containing 17S,481 pounds, at McIntosh Landing, all of which places are in Colusa county. The wheat was to be paid for on delivery at the rate of $1.47% per hundred for the two lots at Squaw Hill, and at the rate of $1.50 per hundred for the residue. The Wheat at Willows and the smaller lot of 1,045 sacks at Squaw Hill were delivered to plaintiff and paid for by him. The wheat was in warehouses, and two receipts had been issued therefor, one of which was held by a bank and the other by one H. Kraft. At the date of the contract plaintiff received an order for these warehouse receipts from defendant. It was agreed that plaintiff should pay all warehouse charges on the grain, and deduct the amount so paid from the purchase price. He paid $200 on this account, and also expended $175.71 in necessary repairs to sacks and in resacking some of the grain, preparatory to shipment. The attack of appellant upon the verdict of the jury is twofold: First, he contends that the evidence fails to establish the necessary V.8P, no. 1-2

facts upon which to predicate a proper verdict for damages in such a case; and, second, that, conceding the propriety of the verdict for some amount, it should not have exceeded $1,575. Section 3308 of the Civil Code is applicable to this case, and is as follows: “The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer over the amount which Would have been due to the Seller under the contract, if it had been fulfilled.” What is meant by the excess of the value of the property to the buyer is defined by section 3354, Civil Code, as follows: “The value of property to a buyer, or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase.” The rules, as formulated by these sections of the Code, are not materially different from those understood to have existed prior thereto. The market value of merchandise was said to be the measure of damages in cases of refusal to deliver upon contract, where payment had been made; and where payment had not been made, the excess of the market value over the price agreed to be paid was deemed the measure of damages. By the market value was meant the price or sum for which an equivalent could be reasonably and fairly purchased at or near the place where the property should have been delivered, and Within a reasonable time after refusal to deliver. The testimony as to value of wheat was furnished by plaintiff and C. B. Hobart, both grain buyers at the very points where the wheat in question was to have been delivered. Plaintiff, after stating that for 14 years he had been a grain buyer, and explaining as to the grade of the wheat in question, proceeds to say:

“On December 8, 1882, I do not think I could have bought an equivalent lot of wheat for less than $1.85 to deliver it at San Francisco, which would leave it $1.68} at Squaw Hill, or $1.70 at McIntosh's, or $1.72% at Willows. After I was refused that wheat on the 7th and 8th, if I had started out, using reasonable diligence, as a grain buyer would in the market or markets nearest this place, Squaw Hill,—in that market or markets nearest to it,-I don’t think I could have bought an equivalent lot of wheat—by equivalent I mean equivalent in quantity and quality—for less than $1.85 per cental delivered at San Francisco; or, that is, $1.68% at Squaw Hill, and $1.70 at McIntosh's.”

The witness Hobart testified to much the same effect, giving the prices at Squaw Hill and the markets nearest it, and also at San Francisco, and later in his testimony explained that “it was worth from $1.80 to $1.85 in San Francisco; and, after deducting freights, that would make it worth $1.67 to $1.67} at Squaw Hill.”

We need not expect, nor is it essential, that witnesses testifying should clothe their ideas in those precise terms usually employed in pleading. They are expected to state such facts as are within their knowledge, in their accustomed forms of expression, and from the language used the idea is gained. When the witnesses Hobart and Bullard stated they did not think wheat at a given point could be bought for less than a given price, and at the same time showed themselves informed as to the price, it was perfectly natural and proper for the jury to infer that the sum mentioned was the price, as well as the lowest price, at which it could be purchased. So, too, when they stated the market value of the commodity in San Francisco, the freight from the place of contract to San Francisco, and that the price therefor at the place of contract was as stated, and being the San Francisco price less the freight, a jury would very naturally conclude that the San Francisco market regulated the price or market value of the article in the interior, and that at the latter point the market value was the price of the article at the former, less the cost of shipment to the central market. These forms of expression may not always convey the exact information from which to infer the fact to be determined, but they will usually be found sufficient, and, in the absence of other factors, which, if wanting, it is the province of a cross-examination to develop, will be deemed sufficient. Our language as a vehicle to convey ideas is not in all respects perfect. Witnesses are not always logicians or elocutionists, but we may ordinarily rely upon their capacity to make themselves understood, and that, being comprehended, the practical good sense of the jury-box will usually result in correct conclusions from their utterances. We see no error in the basis assumed for determining the damages, or in the agency through which a result was reached, or in the result itself. It is further urged that, conceding the validity of the verdict to the extent of $1,575, it cannot be sustained as to the residue. The complaint claimed that $200 was paid by plaintiff on account of the purchase price of the wheat, and that he incurred an expenditure of $175.71 for sacks and in resacking the wheat not delivered. The evidence tended to show that the sum of $200 was paid, not to defendant, but to one of the warehousemen on account of storage of the wheat; that it was paid in pursuance of the contract, which provided that plaintiff should pay storage and deduct the amount thereof from the purchase money. It also appeared that the charges for storage were, subsequent to suit brought, paid by the party who received the wheat, and that the warehouseman still holds the $200 paid him by plaintiff. This sum of money having been paid by plaintiff under the contract, and in obedience to its requirements, he is clearly entitled to recover it from defendant. It was not paid under a mistake of fact. The warehouseman was entitled to his storage. Plaintiff was bound by his agreement to pay it, and did pay this amount. There was nothing voluntary about it, and plaintiff was not entitled, before suit brought, to recover it back from the warehouseman, and the contract having been broken by defendant, he became liable for this sum paid on account thereof.

As to the item of $175.71. The evidence tended to show that this sum was necessarily expended by plaintiff in preparing the wheat not delivered for shipment. As the wheat was never delivered to plaintiff, this item, if objected to at the proper time, would doubtless have been excluded; but no objection was raised, so far as we can see, to it until a motion for a new trial. The complaint contained an allegation of this expenditure. It might have been stricken out on motion, as forming no proper basis for special damages in a case where the property had never been delivered to plaintiff, and in which he, consequently, had no right to expend money upon it. Again, the testimony might have been objected to at the trial, and ruled out, or a refusal so to do assigned as error. No such motion or objection Was made. A party cannot be permitted, under such circumstances, and after tacitly consenting to the introduction of testimony, to assign its admission as error.

The instructions given by the court, at request of plaintiff, stated the law correctly, as applicable to the case. Defendant's instructions, with a single exception, were erroneous, and did not properly state the law as applicable to the testimony. The last instruction, though Subject to some verbal criticism, was in the main correct, and might with propriety have been given; but having already been given to the jury in ampler form, and free from all objection, we are of opinion defendant sustained no injury by its refusal. Upon the whole case as presented we are of opinion the judgment of the court below, and the order denying the motion for a new trial, should be affirmed.

We concur: Foot'E, C.; BELCITER, C. C.

BY THE Cot'RT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 491) REED v. DRAIs. (No. 9,910.) Filed September 25, 1885. 1. DEMURRER to PART of CAUSE OF ACTION, BAD. A demurrer to part of a cause of action or defense is not good. If such matter is irrelevant or immaterial, it may be reached by a motion to strike out; but a demurrer, to be of any avail, must go to the whole cause of action or defense. 2. IMMATERIAL EVIDENCE—RE.JECTION NOT ERROR. In an action to quiet title, the rejection of evidence as to the value of the premises in dispute is not error, if the materiality of the evidence is not shown. 3. WITNESS—TESTIMONY AS To VALUE–FoUNDATION FOR. Where a witness is called to testify to value of property according to his opinion, it must first, as a proper foundation for the introduction of his opinion, whether as an expert or otherwise, he shown that he possesses means of forming an intelligent opinion, derived from adequate knowledge of the kind and nature of property in controversy, and its value. 4. NEW TRIAL–NEWLY-DiscoverED EVIDENCE. A new trial on the ground of newly-discovered evidence will not be granted, if such evidence be merely cumulative.

Commissioners' decision. . Department 2. Appeal from superior court, Stanislaus county. Byers & Elliot, for appellant. Campbell & Muenter and W. E. Turner, for respondent. SEARLs, C. This is an action by Miriam P. Reed, an infant, by her guardian ad litem, W. K. Reed, to quiet title to certain land. Plaintiff claims that the land in controversy was conveyed to her by a sister; that the grantor, before the deed was recorded, went to the office of the county recorder and took the deed therefrom, and sold and conveyed the same land to defendant, and that defendant had notice of such previous conveyance at the date of the sale and conveyance to him. Defendant denied all notice of a previous conveyance by his grantor, and denied plaintiff's title. The cause was tried oy the court, findings waived, and judgment entered for defendant. Plaintiff moved for a new trial, which was denied, and this appeal is prosecuted from the judgment and order denying a new trial. The demurrer to a portion of the amendments to defendant's anSwer was properly overruled. A demurrer cannot be interposed to a part of a cause of action or defense. If irrelevant or immaterial, a motion to strike out may be interposed; but a demurrer, to avail anything, must go to the whole cause of action or defense. In the absence of a showing as to the materiality of the testimony sought to be introduced in reference to the value of the land, we cannot say the plaintiff was injured by the refusal of the court to permit W. K. Reed and E. Olmstead to testify as to such value. Conceding that the testimony may have been admissible, the witnesses offered failed to show themselves possessed of the requisite knowledge to authorize them to testify as to the value of the land. “Where a witness is produced to testify in the character of an expert as to the value of property, it should appear that he has some special skill or experience, or peculiar knowledge of the value of the class of property about which it is proposed to question him; such skill or knowledge having been acquired by him in the line of his profession or business.” Rog. Exp. Test. § 154. According to Whart. Ev. § 447, two essentials are requisite to a proper estimate of value: “First. A knowledge of the intrinsic properties of the thing. Secondly. A knowledge of the state of the market. “As to such intrinsic properties as are occult and out of the range of common observers, experts are required to testify; as to the properties which are cognizable by an observer of ordinary business sagacity, being familiar with the thing, such an observer is permitted to testify.” A witness called upon to give an opinion on the subject of value, whether offered as an expert or not, must lay a proper foundation for the introduction of his opinion by showing he possesses the means to form an intelligent opinion, "derived from an adequate knowledge of the nature and kind of property in controversy, and of its value.” We may assume the residence of the witnesses in the vicinity of

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