Groover v. Belmont

BARNARD, P. J.

This case involves an orange crop agreement. The plaintiff, an elderly woman, had for many years marketed her fruit through a consignment contract with the American Fruit Company. Because of frost damage this company advised her to sell her 1949 crop for cash instead of marketing it in the usual manner. She contacted the Granada Packing House, operated by the defendant, and was told that they were buying for cash. They sent their buyer, one Ogilvie, who made an agreement with her, She signed a printed form of consignment contract, providing, in part, that it was to continue in effect until terminated in the manner provided; that it covered merchantable fruit only, the defendant to be the sole judge of merchantability; and that the grower was to be paid the net proceeds after deducting $1.40 per packed box for packing services, all picking, hauling, shipping and other charges, and any advances made. It contained a further provision, written in by Ogilvie in longhand, that the defendant “guarantees 35^ per field box” for all fruit received and accepted.

On July 25, 1949, the day after picking was completed, the defendant gave the plaintiff a check for $2,500 marked “accomodation advance.” On November 21, 1949, the plaintiff sent the defendant a written notice that she was withdrawing from the contract as of that date. On December 28, 1949, the defendant sent the plaintiff an “accounting” setting forth that 6,630 field boxes had been received; that 67 boxes were unmerchantable; that the net field boxes were 6,563; that the net return from sales of 6,380 boxes and some “bags” was $2,894.15; that the deductions for picking and hauling and “frost separation” were $2,643.35; that the net returns were $250.80; that there was due the defendant $2,249.20; and that “your return exceeds your guarantee.” About a month later, another “accounting” was sent showing exactly the same figures except that it listed 5,667 field boxes as unmerchant

[625]

able and the net field boxes as 963, and stating that an error had been discovered “concerning unmerchantable fruit.” On March 10, 1950, the defendant wrote to plaintiff admitting receipt of the withdrawal notice and stating that because there was a balance due him he “deemed” the contract still in force. On March 22, 1950, the plaintiff’s attorney sent the defendant a cheek for $179.50, the amount paid in excess of the guarantee, and stating that the $2,500 was a payment for fruit and not an advance, and that she would resist any attempt to market her fruit during 1950. On March 23, the defendant returned the check, stating it was not the correct amount, and insisting that this was a consignment contract and not one of purchase.