119 P. 203

J. ROLLIN FRENCH, Respondent, v. ATLAS MILLING COMPANY, a Corporation, Appellant.

Civ. No. 1003.Court of Appeal of California, Second District.
October 6, 1911.

Page 227

APPEAL from a judgment of the Superior Court of Los Angeles County. Benjamin F. Bledsoe, Judge presiding.

The facts are stated in the opinion of the court.

Hester, Merrill Craig, for Appellant.

McKelvey Sorenson, for Respondent.

SHAW, J. —

Action to recover the contract price for 150 tons of hay alleged to have been delivered to defendant by Frank E. Kemp, plaintiff’s assignor, pursuant to the terms of a contract for the sale and delivery thereof. The number of tons of hay delivered under the terms of the contract, as found by the court, was 1412/3 tons, for which, less a sum already paid on account of the purchase price thereof, it gave plaintiff the judgment from which defendant prosecutes this appeal.

Appellant insists the judgment should be reversed for the reason that the finding of the court fixing the number of tons of hay delivered is not supported by the evidence. There is no merit in this contention. Not only did the direct testimony of Kemp, the assignor of plaintiff, tend to prove the fact found by the court, but there was introduced in evidence a writing which purported to be executed by defendant, which, when considered with other evidence, is ample to support the finding.

Appellant, however, insists that the court erred in permitting this writing to be admitted in evidence, for the reason that it was not in fact signed by defendant, but by its attorneys, who were not shown to have been authorized to act for it. When offered in evidence, no objection was made to its introduction upon such ground, the sole contention then being that the instrument was incompetent, irrelevant and immaterial. If defendant had desired the exclusion of the instrument upon the ground now for the first time urged, it should

Page 228

have made its objection based upon such ground at the time of the trial, when opportunity would have been afforded plaintiff to meet the same. Not having done so, it will not now be permitted to urge an objection not made at the time of the trial, when the writing was offered in evidence. That the evidence was material is shown by the fact that it tended to prove the question in dispute, viz., the number of tons of hay delivered to appellant by plaintiff’s assignor. It appears that Kemp, the assignor of plaintiff, and one Hewitt were copartners in the ownership of a lot of hay grown upon the ranch of W. K. Fogg, who was entitled to one-third of the crop as rental. After the hay had been harvested, these parties, by a writing, apportioned the tonnage of hay according to their respective interest, it being agreed that Fogg, the landlord, owned and was entitled to 224 tons, and that plaintiff’s assignor, Kemp, owned and was entitled to 160 tons of said hay, and that Hewitt was entitled to the remainder thereof. Appellant had theretofore, in an action brought against Hewitt, caused the hay to be attached, and after the levy of the attachment and the making of the agreement between said parties apportioning the tonnage of hay as aforesaid, appellant by the writing offered in evidence agreed and stipulated to dismiss and cause the levy of the attachment to be dismissed as to the 160 tons of hay so attached and claimed by Kemp, and agreed that he should remove said 160 tons of hay from the field, and at or about the same time, by a written contract made with Kemp, purchased said hay from Kemp upon the basis and agreement that his interest therein consisted of 150 tons, more or less, scale weight, it being understood that it was all of the hay contained in said field so belonging to Kemp, less 10 tons thereof, elsewhere sold. The agreement between Hewitt and Kemp that the latter was entitled to 160 tons of hay was thus approved and assented to by appellant, who, with full knowledge of all the facts, succeeded to the interest of Hewitt by purchase at a sale under execution. The contract made with Kemp for the purchase of his hay contained a provision to the effect that he would share equally with defendant the expense of loading the 224 tons of hay belonging to W. K. Fogg on the cars at Buena Park, and defendant in its answer alleged that it had paid on account of such expense

Page 229

and pursuant to the terms of the contract, the sum of $157.50, one-half of which sum it was claimed was chargeable to Kemp. The court found this allegation to be untrue. We cannot say that the court erred in so doing, for the reason that, while the evidence shows that the hay was loaded upon the cars, it fails to show the amount paid by defendant for the labor performed in doing the work. There was testimony tending to establish the gross sum paid for handling all of the hay received by defendant from that particular ranch, which included hauling, weighing and the expenses and salary of a solicitor and collector. It cannot be determined from the evidence adduced what portion of the amount so paid should be applied to the cost of loading the hay belonging to W. K. Fogg.

The judgment is affirmed.

Allen, P. J., and James, J., concurred.