LaMiller v. St. Claire Packing Co.

[520]

PEEK, J.

Defendants appeal from a judgment in favor of plaintiff awarding him damages in the sum of $5,130 occasioned by the breach by defendant St. Claire Packing Company, sometimes referred to hereinafter as the Buyer, of a written contract wherein said company agreed to buy and plaintiff agreed to sell his 1947 tomato crop. Defendant United Pacific Insurance Company, as bondsman for the buyer under the provisions of section 1300.1a of the Agricultural Code, was held liable in the sum of $5,000, the limit of its bond.

The provisions of the contract pertinent to the issues raised on appeal are that the plaintiff “sold” all of the tomatoes grown on his land and the packing company “bought” the same for $29 per ton; that the tomatoes would not be less than 2% inches in diameter and would be delivered at “roadside” in boxes furnished by buyer, but that buyer would not be liable for failure to do so beyond the exercise of reasonable care.

Plaintiff’s complaint alleges that defendant buyer breached the foregoing contract in that it failed to provide the boxes as provided for in the agreement and failed to accept the tomatoes at the times and in the manner contemplated by the contract. Demurrers by each defendant were overruled. Thereafter separate answers were filed, each of which generally denied the allegations of the complaint and affirmatively alleged that the contract had been terminated by mutual agreement of the parties and that the tomatoes did not comply with the provisions of the contract as to size. The trial court adopted findings of fact favorable to plaintiff, and from the judgment which was accordingly entered defendants have appealed.

Appellants’ first attack upon the judgment is premised upon the proposition that respondent’s tomatoes did not conform to the contract requirement as to size and therefore were subject to rejection, their argument in this regard being that conformity to such requirement was a condition precedent to the duty of the buyer to accept the tomatoes and that, in the absence of proof of compliance therewith, there was no liability on its part for nonacceptance. The record does not bear out this contention. The evidence in relation to such contention shows that until the buyer closed its cannery it accepted all of respondent’s tomatoes, rejecting no deliveries for failure to conform to the minimum size requirements of the contract or for any other reason; that respondent’s tomatoes were average in size; that the tomatoes under 2% inches in diameter were no more prevalent than those grown in adjacent fields,