Townsend v. Flotill Products, Inc.

PEEK, J.

Plaintiff commenced this action to recover an indebtedness on a common count for services rendered at defendant’s oral and special request. Defendant answered and filed a cross-complaint alleging that defendant and plaintiff entered into oral contracts whereby plaintiff agreed to furnish trucking service for the hauling of peaches and tomatoes to defendant’s canneries, and alleging damages by reason of plaintiff’s breach of said contracts. Plaintiff admitted execution and alleged full performance of the agreement to haul peaches, but denied that an oral agreement to haul tomatoes as charged by defendant had been entered into, and alleged that defendant orally agreed to give plaintiff such a contract to haul tomatoes, that in anticipation of receiving such contract plaintiff did haul some tomatoes to defendant’s canneries, that defendant refused to give plaintiff such contract and he was thereby prevented from further hauling the tomatoes. As a separate defense to the cross-complaint plaintiff alleged that if such oral agreement to haul tomatoes had been entered into, defendant breached the same by refusing to pay waiting time on hauls made to its canneries as required by the Office of Price Administration, and that plaintiff was thereby prevented from further performance.

The trial court sitting without a jury found for the plaintiff and against the defendant on all issues. Judgment was entered for the full amount as prayed for in the complaint.

Appellant’s contentions on appeal in effect raise but one issue—the sufficiency of the evidence to support the findings of the trial court that no contract was entered into for the hauling of tomatoes by plaintiff from the Woodland area to defendant’s Stockton cannery.

It is appellant’s argument that the particular contract alleged to exist here must be interpreted according to the

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usage of the place of performance (Civ. Code, § 1646), that in the absence of a contrary intention any stipulation necessary to make the contract reasonable and conform to usage’ must be implied (Civ. Code, § 1655), and that all things in law or usage either incidental or necessary to the contract or to carry it into effect if not expressly mentioned, are implied (Civ. Code, § 1656). From this appellant concludes that in the light of prior dealings between the parties and the knowledge of each with respect to the usage and customs of the hauling business the force of such statutory rules compels the conclusion that a contract for the hauling of tomatoes from the Woodland area to Stockton was consummated and in fact partially performed.