Matmor Olive Co. v. Du Bois

BARNARD, P. J.—-

On November 11, 1941, the plaintiff agreed to purchase a crop of olives, estimated at 300 tons, growing on land owned by the defendant in San Diego County. The plaintiff, whose place of business was in Tulare County, agreed to pick the olives at its own expense, to begin picking about December 1, 1941, to complete the same within 60 days, and to pay $135 per ton for the olives “on the trees.” The plaintiff paid to the defendant in advance $15,000, being $50 a ton on the estimated crop, and it was agreed that as each ton of olives was delivered $50 from this advance payment should be applied thereon and the balance of $85 should be paid through an arrangement made with a bank. It was agreed that when the entire crop was picked any part of this $15,000 which had not been thus applied should be repaid to the plaintiff.

The plaintiff began picking on December 7, 1941, and ceased operations shortly prior to February 15, 1942. It picked and removed 165.525 tons of olives which were fully paid for in the manner agreed upon.

The plaintiff brought an action in Tulare County in the form of a common count to recover the balance of the $15,000 advance payment, since only about 165 tons had been taken. It also filed another action in that county seeking damages on the ground that the defendant had interfered with its pickers.

[469]

On motion of the defendant these two actions were transferred to San Diego County.

The defendant then answered the first of these actions denying that he owed anything to the plaintiff and setting up, as a plea in abatement, that two separate actions growing out of the same contract had been filed for the purpose of vexing and annoying him. He also answered the second action denying the allegations of the complaint, setting up the same plea in abatement, and including a so-called “counterclaim,” which was in fact a cross-complaint, in which he set forth the contract of November 11, 1941, alleged that the plaintiff had failed to pick and pay for some 135 tons of olives which it had agreed to take, and further alleged that the plaintiff was indebted to him in the amount of $350 as rental for certain ladders. He prayed for a judgment for $18,241 for the first of these items and $350 for the second item.

The two actions were consolidated for trial over the objection of the defendant, although he had pleaded in each that they had been improperly separated. After a first trial a new trial was granted on stipulation of the parties, and the action was again tried before a different judge. The plaintiff abandoned its cause of action for damages and stipulated that the defendant was entitled to $350 as rental for the ladders. The court found that the plaintiff had picked and taken 165.525 tons of olives which had been fully paid for in accordance with the agreement; that when the contract was entered into there were not less than 300 tons of olives on the trees; that