Ruiz v. Norton

Decided October 15, 1854

California Supreme Court · decided 1854-10-15

On the second trial of this case, after the reversal of the . judgment before reported, the counsel for the plaintiffs opened, by stating (after reading the pleadings), that they would prove the due execution of the contract of sale, set forth in the complaint; and that, when it was executed, the ship “Glyde,” with a cargo of two thousand bags of Peruvian rice on board, was lying in the harbor of San Francisco, consigned to Godeffroy, Sillem & Co., who were the duly…

Decided 1854-10-15

Mr. Justice Heydeneeldt

¶1delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

¶2When this case was here before, we reversed the judgment upon the ground that the defendants were not allowed to prove the unsoundness of the article delivered, and we held that if the unsoundness was established, the plaintiff could not recover upon the contract; but, to the extent of the delivery of the rice, he might recover its value upon the common counts. Upon this decision, we see no reason why the District Court should have granted a nonsuit upon the proof proposed.

¶3Judgment reversed, and cause remanded.

¶4Note. — This opinion was delivered at this Terra. Tho preceding opinion in the lame ca»'- was delivered at the October Term, 1858.