Aiello v. Sliskovich

MARKS, J.

This is an appeal from a judgment for $1,400, being $750 for olives actually delivered to and accepted by defendant, and $650 for olives not picked from the trees and others which he left on the ground.

Plaintiff is the owner of a 40-aere olive orchard near Elsinore, in Riverside County, and defendant owns an olive processing plant in Rialto, in San Bernardino County. The two entered into the following contract:

“This contract entered into this 12th day of October, 1943, between Petar Sliskovich, party of the first part and Sam Aiello, party of the second part,

“TO WIT: The party of the first part agrees to pay the party of the second part the sum of $4500.00 for forty tons of

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olives, and the sum of $3000.00 is to be paid down and the balance of $1500 is to be deposited in the Bank of Perris as a guarantee of payment.

“If there is less than 40 tons of olives the party of the second part agrees to take $100.00 per ton off of the purchase price of $4500.00 and if there is more than 40 tons the party of the first part agrees to pay $100.00 per ton for all of the olives over the amount of $4500.00.

“These olives are located on the Cavilan Road and are owned by Sam Aiello. The picking is to be started the latter part of December, 1943. The trees are to be picked reasonably clean.

“The money is to be deposited in the bank as soon as the picking is started. A receipt of ($3000.00) Three Thousand Dollars is hereby acknowledged.”

It is admitted that the duty of picking and hauling the olives rested on defendant and that plaintiff was paid $3,000 by check dated October 12, 1943, and $1,500 by check dated February 3, 1944.

The portion of the judgment for $750 for 7% tons of olives actually delivered in excess of the 40 tons mentioned in the contract is not questioned by defendant as he admits that the evidence, though conflicting on the subject, is sufficient to support the finding that those olives were actually delivered to and accepted by him. The only question argued is the legality of the award of $650 for olives left on the trees and on the ground. There is evidence supporting the finding on the quantity of those olives and also that they were merchantable.