Appeal from Superior Court, Butte Coun- sound and merchantable at the place of proty; John C. Gray, Judge.

J. R. King, of Gridley, for appellant. Geo. the quality of the grapes, indeed, the pleadF. Jones, of Oroville, for respondents.

De

Mr. Dalton, who was working for plaintiff, | From the way I looked at it is, the way Mr. testified that he was engaged, after said Porter bought these grapes, he bought them storm, in hauling the grapes to the railway on the looks of them." station, and that "they were mouldy," and [1] But, regardless of any express agreethat he did not "consider them good mer- ment to that effect, under the authorities, a chantable grapes." Other disinterested wit-warranty is presumed from the nature of the nesses also testified to the same effect. transaction between the parties. In confendant Porter testified that "some of them sidering this branch of the subject, as well were good grapes, as I told them, when they as any other, we must, of course, accept the went to pick, I told them not to put anything facts as shown by the evidence favorable to in but good grapes; and I told Mr. King and respondents' position. Mrs. King, 'You have packed grapes for Gallagher and Harris and you know what they will take and what they won't take,' and I said, "Don't put anything in there but what you know they will take, and it will be all right, I will take them.'" It seems he was buying for Gallagher and Harris to whom he was to ship them in Oakland Porter went on further to say that no good merchantable grapes were delivered to defendants after said storm at said railroad station, and that he paid for all the grapes that were delivered according to the contract.

It may be said also, without quoting further from the testimony, that Porter's explanation of his dealings with plaintiff and the assignors in reference to said grapes leaves nothing to be desired on the score of justice and equity. We must accept his statements as true, and accordingly hold that he acted within his legal rights in declining to accept the damaged grapes, unless, perchance, there was in the contract no warranty, either express or implied, of their quality.

*

But the court was legally justified in holding that the warranty was one of the express terms of the contract, or that it should be inferred from the other terms and conditions. Mr. Porter indeed testified that: "They were to be grapes that was fit for table use; that was explicitly understood. The agreement was that I was to give them $15 per ton for all good grapes delivered at the Northern Electric cars at what is called East Gridley. This contract was made on the 25th day of August, on Sunday. The way that was I had been down to Pfoh's two or three different times to see him about his grapes, and made him an offer of $12.50 a ton, and he wouldn't consider it, and I told him I couldn't pay any more than that for the grapes unless they were grapes that were fit for table use. I said: 'I will come and look at them, Mr. Pfoh, and if they are fit for table use I think I can give you more.' He knew what I was buying the grapes for and so did all the balance of them. I told them." Even the plaintiff would not deny that he warranted the grapes to be merchantable and fit for table use. He was questioned by counsel, and he gave answers as follows: "Do you state positively that you did not warrant the grapes to be merchantable and fit for table use? A. Well— Q. (Int.) Do you or do you not?

A.

[2] In principle the case is identical with Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 Pac. 248, 9 Am. St. Rep. 199, and Walti v. Gaba, 160 Cal. 324, 116 Pac. 963. Here there was no sale, but a mere agreement to sell. Indeed, it is so alleged in the complaint. At the time of the contract there was no delivery of the grapes nor payment of the price. The grapes were in fact not in a condition in which the buyer could be called upon to accept them. They were not ripe, and therefore not ready for delivery. The amount of the grapes was unknown, but was to be ascertained by weighing them at the time they were ready for delivery. In fine, there are present all the substantial elements of an executory contract that are found in the said Blackwood and Walti Cases. In the former, it is said: "It seems well settled that the question as to whether the title has passed is one as to the intention of the parties. And such intention is, as a matter of course, to be gathered from the language of the parties, considered in the light of all the circumstances of the case." It is further declared that, in the absence of anything showing a contrary intent, there are certain circumstances which have a controlling force. The court proceeds to enumerate those existing in that case. One of them was that, at the time of the contract, there was neither delivery of the goods nor payment of the price. The contract there provided that the fruit was bought "at three cents per pound f. o. b. (free on board cars at) Haywards." It was held that the delivery of the goods and the payment of the price were conditions concurrent. The same is true here. The court declared: "And, if the condition of payment is not waived, the title does not pass until the price is paid. Peabody v. Maguire, 79 Me. 572, 12 Atl. 630; Evansville R. R. Co. v. Erwin, 84 Ind. 464; Turner v. Moore, 58 Vt. 456, 3 Atl. 467; Adams v. O'Connor, 100 Mass. 515, 1 Am. Rep. 137; Hoffman v. Culver, 7 Ill. App. 454."

Other circumstances are said to be more specific criteria of the question. Of these, one was that the goods were not in a condition in which the buyer could be called upon to accept them, as the seller was to give the necessary cultivation to the orchard, pick the fruit, pack it in suitable boxes, and deliver it to the carrier at Haywards. Benjamin on Sales (b. 2, c. 3) is quoted to the effect that "where by the agreement the ven

dor is to do anything to the goods for the purpose of putting them into that state into which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property."

He would not bear such loss, because the title to the wool had not vested in him, and by the terms of the contract was not intended to vest in him until it had been sheared and delivered at Kings City."

In what is known as the Elgee Cotton Cases, 22 Wall. 180, 22 L. Ed. 863, the United States Supreme Court held that the following contract did not pass the title, but must

There was, it is true, in the Blackwood be construed as an executory contract of Case another circumstance that probably sale: "We have, this 31st day of July, 1863, does not exist here, namely, some uncertain- sold unto Mr. L our crops of cotton, now ty as to the identification of the goods. This lying in the county aforesaid, numbering arose from the fact that the contract of sale | about 2,100 bales, at the price of ten cents was for "not less than 75 tons and not ex- per pound, currency, the said cotton to be ceeding 200 tons per annum." It was there- delivered at the landing of Fort Adams, and fore held that segregation and weighing were to be paid for when weighed. Mr. L. agreeing necessary to identify the goods. The agree to furnish at his cost the bagging, rope, and ment here related to the whole crop. In that twine necessary to bale the cotton unginned, respect it differs from the Blackwood Case, and we do acknowledge to have received, in but the other mentioned circumstances are order to confirm this contract, the sum of decisive. It is to be observed also that in thirty dollars. This cotton will be received the Blackwood Case it was held that it was and shipped by the house of D. & Co., New not a sale, although the written contract be- Orleans, and from this date is at the risk tween the parties recited that the Cutting of Mr. L. This cotton is said to have weighPacking Company "bought of M. C. Black-ed an average of 500 lbs. when baled." Aftwood his crop of apricots," and Blackwood er reciting the rules already stated herein "sold" his crop of apricots to the Cutting that must be applied in ascertaining whether Packing Company. In that respect the case was stronger for the asserted vendor than the one here.

The subject was thoroughly discussed in the Walti Case, supra, in which the Supreme Court adopted the opinion of the District Court of Appeal of the First District, prepared by the late Mr. Justice Hall. From the syllabus we get the following concise statement of the principal facts and of the main point decided by the court: "The plaintiffs, who were the owners of a band of sheep located near Kings City, entered into a written contract which stated that they 'have this day sold' to the defendants, 'all of our spring wool clip of 1906 at 18 cents per pound, also the fall wool clip of 1905 at 14 cents per pound. The fall wool, which is stored ⚫ * at San Francisco, the spring wool to be delivered at Kings City depot in consideration thereof we accepted a deposit of $250 part of payment of said sale, the balance to be paid on the delivery of wool.' At the time the contract was executed the spring wool was on the bodies of the sheep. Held, that the contract was not one of present sale, but constituted a mere agreement to sell and buy; that the contract was entire, and did not pass title to any of the wool to the purchasers, and that the latter were under no obligation to pay for any of the wool until the delivery to them of all of it." There is a reaffirmance of the doctrine of the Blackwood Case, and the court declares that "if the sheep had been destroyed by act of God before the spring wool had been sheared, and the wool thus lost, it would hardly be contended by any one that the buyer should bear the loss of the wool,

the contract constituted a sale, the court, through Mr. Justice Strong, declared: "They are in most cases held to be conclusive tests. Though not supported by all the decisions, they certainly are generally accepted in England, and by most of the courts in this country.

* In our judgment, therefore,

the contract of July 31, 1863, must be regarded as only an agreement to sell, and not as effecting a transfer of the ownership. It left the property in Elgee, where it was before."

We consider the cases cited by appellant not inconsistent with the foregoing, in view of their peculiar facts. For instance, it is clear that the distinguishing feature of Bill v. Fuller, 146 Cal. 50, 79 Pac. 592, is the fact that the vendee was responsible for the unmerchantable condition of the fruit. It is so declared in the opinion, as follows: "The fact that they had been allowed to remain so long on the trees, and thus become unfit for the market, was the fault of the defendant, and he should not be allowed to take advantage of that fault."

[3] After the cause was submitted, plaintiff gave notice of motion for leave to file an amended complaint "according to the evidence proved in said cause." It does not appear, except in the opinion of the trial court, what was the specific amendment desired, but it is at least clear from said opinion that the judge considered the proposed amendment irrelevant. He states that the proposition was "to set up a contract of absolute sale," but that "unfortunately for him there was nothing in the testimony that would warrant the court in allowing such an amendment." The trial judge was legal

SUBSEQUENT APPLICATION.

dence, and, having reached the conclusion | 3. CRIMINAL LAW (8959*)-CONTINUANCEfrom the testimony of the witnesses that there was no sale, of course, it followed that the motion to amend should be denied. At least, in the state of the record, it cannot be said that there was any abuse of discretion

therein.

ing accused's fourth application for a continThere was no abuse of discretion in denyuance of a motion for new trial, where the court had already granted three applications, the last of which carried the case up to within one day of the time which the court could have granted, under Penal Code, § 1191, requiring the court to pronounce judgment within a certain time after verdict, and accused had reasonable opportunity to prepare for the hearing.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2406-2411; Dec. Dig. §

[4, 5] It seems also that a motion was made to reopen the case, that plaintiff might offer additional evidence as to certain words that appeared on the checks received in evidence, and also that defendant Porter had admitted that he bought said grapes from plaintiff | 959.*] and his assignors. There is nothing to show that this motion was supported by affidavit or other evidence that might justify appellant's omission to present the evidence before the cause was submitted. Besides, it is quite clear that the evidence, if received, would not have produced a different result, the trial judge saying: "The motion to set aside the submission and introduce further

testimony in view of what has already been

said would be useless and therefore is denied."

Another motion seems to have been made for the court to set aside the judgment for the reason that the judge, in his opinion, had referred to the complaint as verified when, as a matter of fact, it was unverified. But it is apparent that only the trial judge

the cause.

could determine whether that circumstance was a decisive factor in the determination of In denying the motion, he necessarily decided that the mistake was of no consequence. We cannot say that he erred. We have referred to these assignments of error although we are not directed to the portion of the transcript containing the record concerning them. We have examined all the points, indeed, made by appellant, but we see no reason for disturbing the judgment of the lower court and it is therefore affirmed.

Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

James Wing was convicted of burglary, and appeals from the judgment of conviction and from an order denying his motion for a new trial. Affirmed.

J. K. Ross, of San Francisco, for appellant. U. S. Webb, Atty. Gen., for the People.

KERRIGAN, J. The defendant was charged by information with the crime of burglary. He was found guilty of that offense in the first degree, and sentenced to imprisonment for a term of eight years. From the Judgment and from his motion for a new trial, defendant prosecutes this appeal.

For a reversal of the judgment defendant depends principally upon his point that the evidence does not sustain the verdict of the jury. This position is not maintainable. A certain business concern was burglarized in San Francisco on the night of July 8, 1912. In September of the same year a detective of the police department, while investigating another charge against the defendant, found in his possession the articles stolen on the night of July 8th. Defendant admitted that he received these goods on July 18th, but at the trial claimed that he had purchased them from a man named Dewey. The articles ad

We concur: CHIPMAN, P. J.; HART, J. mitted in evidence against the defendant

(23 Cal. A. 50)

PEOPLE v. WING. (Cr. 436.)

were amply identified as those which were stolen on July 8th from the said concern, and, as defendant came into possession of them ten days later, the fact of his being in pos

(District Court of Appeal, First District, Cali- session of recently stolen property was clear

· DENCE.

fornia. Oct. 20, 1913.)

SUFFICIENCY OF EVI

1. BURGLARY (§ 41*)
Evidence held to sustain a conviction for
burglary.

[Ed. Note.-For other cases, see Burglary,
Cent. Dig. §§ 94-103, 109; Dec. Dig. & 41.*1
2. CRIMINAL LAW (§ 404*)-EVIDENCE-IDEN-
TIFICATION OF OBJECTS.

Where some of the articles admitted in evidence as being from the burglarized store were positively identified as being taken therefrom, and others were shown to be of a similar brand and make to those in the store, the articles were sufficiently identified to be admissible.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 873, 891-893, 1457; Dec. Dig. 404.*]

ly before the jury. Dewey, the man from whom defendant claimed to have purchased this property, was not satisfactorily identified, nor was he called as a witness by the defendant. Moreover, a witness for the people testified that the defendant had told him that he had bought the goods in Fresno a year before, and defendant was also contradicted in his testimony that on the night of the commission of the crime he was in the city of Stockton by the proprietress of the hotel where he lived, who testified that on the night of July 8th he occupied his room in the hotel conducted by her in San Francisco.

[1] The jury evidently gave no weight to the defendant's testimony that he was in

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes