Plaintiff seller filed a breach of contract action against defendant buyer. The Superior Court of Fresno County (California) entered judgment for the seller. The purchaser challenged the trial court’s decision and the seller challenged the trial court’s determination of damages.

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In his complaint, the seller sought to recover the difference between the amounts paid by the purchaser and the amount computed upon the basic price stated in the contract, with the exception of milk that had already been delivered. Moreover, the seller sought to recover damages for the purchaser’s refusal to accept deliveries of milk during the second year of the contract period. The purchaser contended that the evidence established as a matter of law that an account was stated between the parties and that the trial court erred in refusing to admit evidence offered of oral notice of termination of the contract. Additionally, the purchaser argued that the evidence in support of certain breaches of contract by the seller alleged in the purchaser’s answer. The purchaser alleged and offered to prove oral notice to the seller prior to the sending of written notice and within the time specified. The seller contended that under the terms of the contract, he was entitled to the written notice as provided. On appeal, the court held that there was no evidence tendered or received to prove that the seller expressly or by his conduct waived the required notice.


The court affirmed the trial court’s decision entering judgment in favor of the seller.