Bones v. Fusco

GRAIL, P. J.

—The plaintiff is a grower of pears in the Antelope Valley. He consigned his pears to the defendant Fusco, as factor, under a printed form of contract which contained the following clause: “The Agent agrees to haul, pick and pack said crop of Bartletts and to sell the same to the best of their ability and judgment and at all times endeavor to obtain the best possible price for the Grower’s

[478]

fruit.” The pears were placed in cold storage. While the pears were in good condition, the plaintiff ordered his factor to sell. This the factor, relying upon the clause of his contract which is set forth above, refused to do, or at least wilfully neglected to do until the fruit had become spoiled. The trial court gave judgment to the plaintiff for the difference between what he actually received for his fruit and what he would have received for it if his instructions had been complied with, plus certain overcharges for storage. The appeal is from this judgment.

Defendant’s first contention is that he was under no legal obligation to obey the instructions of his principal for the reason that the provision of the contract, above quoted, was a waiver of such obligation. Section 2027 of the Civil Code provides as follows: “A factor must obey the instructions of his principal to the same extent as any other employee, notwithstanding any advances he may have made to his principal upon the property consigned to him, . . . ” In our view the section of the contract upon which the defendant relies is in no sense a waiver of plaintiff’s rights under section 2027. They are not inconsistent. The provision was placed in the contract for the benefit of the plaintiff and not the defendant. After all, the pears belonged to plaintiff. He bound the defendant by the provision to sell the pears to the best of his ability, etc. But there is nothing therein to indicate that the plaintiff was waiving any of his rights. In spite of said provision he still had the right to direct his factor to sell the pears.

(Rhee

v.

L. K. Small Co.,

83 Cal. App. 339 [256 Pac. 839].)