Appellant buyer sought review of a judgment of the Superior
Appellant buyer sought review of a judgment of the Superior Court of the City and County of San Francisco (California), which found in favor of respondent seller in the seller’s action to recover damages for breach of a contract to purchase 750 cases of processed eggs.
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The eggs were to be delivered upon request. Pursuant to the contract, 128 cases of processed eggs were shipped, accepted, and paid for by the buyer, leaving undelivered 622 cases, which the buyer refused to accept and attempted to cancel the contract upon the ground that the eggs were unfit for use. The 622 cases of rejected eggs were sold for the highest market price, which was less than the contract price. The court found that the title to the undelivered eggs had not passed to the buyer for the reason that they were not in the possession of the seller at the time of the execution of the contract, but were received, candled, and packed for the buyer subsequent to that time. Thus, the seller, acting as an agent for the buyer, was entitled to sell the eggs pursuant to Cal. Civ. Code § 3049, and sue for the difference between the contract price and the net proceeds of the resale. The court determined that a sufficient number of eggs of the quality and character specified to fulfill the contract were always in the seller’s possession, stored and subject to the buyer’s order. Affirming, the court held that there was no breach of warranty as to the soundness of the eggs.
The court affirmed the judgment.