DocketNumber: Civ. No. 18496
Citation Numbers: 110 Cal. App. 2d 359
Judges: Fox
Filed Date: 4/10/1952
Status: Precedential
Modified Date: 1/11/2022
This is an action to recover the purchase price of 11 carloads of lumber sold and delivered by plaintiff to defendant pursuant to a written contract. Defendant filed a counterclaim and cross-complaint in which he seeks to recover from plaintiff the sum of $77,438.01, which he alleges he overpaid in freight charges on a total of 410 cars of lumber shipped to him under the contract. From a judgment in favor of plaintiff and against defendant on his counterclaim and cross-complaint, defendant appeals.
There is no dispute as to the facts. Plaintiff and defendant entered into a written contract whereby defendant agreed to purchase from plaintiff a total of ten million board feet of lumber. No price was specified in the contract but it was agreed that “the prices for Douglas Fir lumber shall be
The lumber was shipped to defendant from South Fork, California, and upon delivery he paid to the carrier the freight charge from South Fork to Los Angeles. Thereafter defendant was billed at an agreed price f.o.b. mill, to which was added the freight rate from Portland, Oregon, to Los Angeles, and the amount of the freight previously paid by defendant, being the rate from South Fork to Los Angeles, was shown as a credit.
Defendant contends the findings of fact are not supported by the admitted facts in the pleadings and that they do not support the conclusions of law nor the judgment. In his brief he states: “The record on this appeal presents but one point for decision, that is, whether plaintiff can exact from defendant an excessive freight, that was never paid to the carrier and which is actually nothing more than a bonus and rebate exacted and collected under the guise that such differential in the freight rate charged and the rate paid to the carrier was, in fact, a part of the purchase price.”
Plaintiff admitted defendant’s allegation that it charged ' and collected from defendant the Portland, Oregon, freight rate to Los Angeles, and that he actually paid the domestic freight rate for shipment, and by way of affirmative defense alleged that the “parties agreed that the defendant . . . would pay to plaintiff . . . the difference between the Portland, Oregon, freight rate and the freight rate from the point of shipment of said lumber to Los Angeles, California, as part of the purchase price of said lumber.” These allegations the court found were true.
The court also found that “subsequent to the execution of the contract referred to and beginning with the first de
Much of defendant’s brief is devoted to arguing that the regulations of the Administrator of the Emergency Price Control Act of 1942 were illegal in that they permitted freight rebates and that such rebates are prohibited by Act 6386, section 23(b), 2 Leering’s General Laws, and are against public policy. Such arguments are without merit since the court specifically found that (1) defendant did not pay any false or excessive freight rate; (2) defendant agreed to pay the freight rate between Portland and Los Angeles as part of the purchase price, and (3) defendant did not pay more than the prevailing market prices and was not overcharged. Since this appeal is upon the judgment roll alone, it must be presumed that the evidence supports the findings. (Tarvin v. Davey, 56 Cal.App.2d 846, 850 [133 P.2d 844]; Geneusz v. Harrington, 218 Cal. 760, 762 [25 P.2d 4].)
The judgment is affirmed.
Moore, P. J., and McComb, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied June 5, 1952.