Home/California Court of Appeal/H. Moffat Co. v. Rosasco

H. Moffat Co. v. Rosasco

260 P.2d 126, 119 Cal. App. 2d 432, 1953 Cal. App. LEXIS 1231
CourtCalifornia Court of Appeal
DecidedJuly 29, 1953
DocketCiv. 8246
StatusPublished
Cited by8 cases

This text of 260 P.2d 126 (H. Moffat Co. v. Rosasco) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
H. Moffat Co. v. Rosasco, 260 P.2d 126, 119 Cal. App. 2d 432, 1953 Cal. App. LEXIS 1231 (Cal. Ct. App. 1953).

Opinion

SCHOTTKY, J.

J.—Respondent corporation commenced an action against appellant to recover damages for alleged breach of contract. It alleged in substance that the parties entered into a written agreement whereby defendant agreed to deliver to plaintiff, between May 15, 1950, and June 1, 1950, at defendant’s ranches, 800 head of cattle at 20 cents per pound, payment to be made by $100 at the time of the making of the agreement, $9,900 on the 10th day of January, 1950, and any balance as the cattle were loaded; that plaintiff performed all of the conditions precedent and was ready, able and willing to receive and to pay for the cattle, but that defendant failed and refused to deliver 800 head of cattle, but instead has delivered only 726 head, and that as a result of this breach plaintiff has been damaged $7,999.40, and also $269 in addition, which amount was overpaid said defendant on the purchase price through advances. A facsimile of the contract was appended to the complaint as an exhibit and is as follows: [See opposite.]

Defendant and appellant filed an answer and cross-complaint in which he admitted the signing of the contract; admitted that he delivered only 726 head of cattle; denied that he refused to deliver 800 head or that plaintiff had been damaged by his failure to deliver any cattle. In his cross-complaint defendant and appellant prayed that the court reform the contract in accordance with the actual intention of the parties, and that the court determine and decree that the defendant has fully performed said contract, as reformed. He alleged *435 that by mutual mistake the parties set the number of cattle to be sold at 800, both believing defendant had this number, when in fact the lot consisted of approximately 750 head; that in truth, at the time of the making of the contract there were only 748 head, and between the time of the making of the contract and the time of the roundup 10 head were lost and 8 head died; that when the steers were finally rounded up only 726 head were found; that it was never the intention of the plaintiff to buy, nor of the defendant to sell any definite *436 or specific number of steers, rather plaintiff intended to buy and defendant intended to sell all the steers of a certain breeding and brand then owned by defendant, and ranging in the state of Nevada; and that according to the true intentions of the parties the defendant has fully performed in accordance with the terms of the contract.

*435

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Cite This Page — Counsel Stack

Bluebook (online)
260 P.2d 126, 119 Cal. App. 2d 432, 1953 Cal. App. LEXIS 1231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-moffat-co-v-rosasco-calctapp-1953.