Olcese v. Davis

NOURSE, P. J.

This is an action for damages for the alleged breach by sellers of an oral agreement to buy and sell the total crop of onions being harvested on a certain ranch for $1.10 per bag, of which crop 6,000 bags were delivered and paid, but delivery of the larger balance was refused notwithstanding several demands. Damages are based on the loss of profits which plaintiffs would have made by sale of the balance of the onions in Havana, Cuba.

The main defense was that the oral agreement was not as alleged and that the delivery of 6,000 bags was not a part performance of such agreement but was a full performance of an oral agreement for that quantity only.

The court sitting without a jury found for plaintiffs and defendant Hansen appeals, the action having been dismissed

[60]

as to defendant Davis. Appellant primarily urges a reversal on the ground that neither the contract as alleged nor circumstances taking it out of the statute of frauds for the purpose of this action were proved. It was agreed at the trial that oral evidence as to the alleged agreement would be admitted subject to motion to strike if part delivery and acceptance taking it out of the statute were not proved. The contention that the oral evidence did not support the finding of an agreement of sale of the whole crop is based on minor discrepancies in the testimony of the witnesses for plaintiffs who testified to that effect and on arguments as to their credibility and the weight of the evidence. That these are matters for the trier of facts, which cannot be reviewed by us, is too well known to require citation of authority.

With respect to the insufficiency of the evidence to take the agreement out of the statute, appellant advocates the theory that plaintiffs in this action by buyers must prove that defendant seller delivered the 10 cars (6,000 bags) to plaintiffs in recognition of, and pursuant to, the larger oral contract which plaintiffs seek to enforce. Appellant relies mainly on

Howland

v.

Iron Fireman Mfg. Co.,

188 Ore. 230 [213 P.2d 177, 215 P.2d 380], which case, well reasoned and extensively supported by authority, is good authority for the rule stated. The rule itself is correct and sensible law in cases where, as here, the performance may refer to either one of two different alleged agreements. However, appellant’s further contention that the seller’s intention that his delivery be in reference to the contract alleged by the buyer must appear directly from the seller’s actions and not only from his words, and that it cannot be proved by oral evidence of plaintiff’s witnesses, is not supported by the Howland case or any other authority cited by appellant and must be rejected. The Howland case holds that the question to which of two alleged agreements the part performance is referable is for the jury, and states (215 P.2d at p. 384) that “the finding of the jury on disputed issues as to the nature of the contract may have a material bearing upon the further question as to whether acceptance and receipt [here delivery] were referable to the contract as found.” The rule quoted by appellant from 12 California Jurisprudence 879: “Mere words, unaccompanied by any act, are not enough” do not relate to the reference of the part performance to a certain contract, but to the acceptance and receipt (or delivery)