Gibb v. Probst

Decided January 15, 1852

California Supreme Court · decided 1852-01-15

The appellant filed his complaint against the respondents, stating that a written contract was made between the parties on the 8th of February, 1850, at San Francisco, by which the plaintiff was to ship, and the defendants to receive on board the schooner Isabel, a cargo of lumber, &c., then on board another vessel, as soon as the same could conveniently be done, an invoice of which, at the prices noted at the foot of the agreement, and signed by the parties, was to be…

Decided 1852-01-15

Justice Murray

¶1delivered the opinion of the Court. We do not think the appellees intended to guarantee the invoice price of the lumber. Such a conclusion can only be sustained by a forced construction of the contract. The invoice price was, by the contract, to be paid out of the proceeds, without any deductions whatever. The agreed case shows, that the gross receipts amounted to $4826.10, of which the appellant has only received $1854.14. The deduction of costs and charges of various descriptions is improper. As by the terms of the contract, the invoice price is first to be deducted, all charge or expense must devolve upon the appellees.

¶2The judgment must be reversed, with costs, and directions to *118the Court below to enter judgment for the appellant, in conformity with this opinion.