Sistrom v. Anderson

HANSON, J. pro tem.

This is an action for damages for breach of contract, in which the question for decision is whether a written cancellation of the contract sued upon is binding upon the parties to it.

Appellant, who was plaintiff below, for some ten years, has operated a ranch in Arizona where he raises a considerable number of turkeys. During this same period the defendants, as partners, have been engaged in the retail and wholesale meat business at Long Beach. It was the custom of the defendants to purchase in other states, among them Arizona, their annual holiday supply of turkeys. In these transactions the defendants were represented by defendant Anderson, who not only had visited plaintiff’s ranch in Arizona and knew plaintiff was an extensive producer of turkeys, but he knew the buildings and facilities which plaintiff had at his ranch for killing and dressing turkeys. Moreover, he was familiar with the temperature conditions which prevailed annually in Arizona during November and December.

By the terms of the contract, which respondents contend was effectually cancelled, plaintiff undertook to sell and deliver to defendants between November 15, 1936, and Janu

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ary 15, 1937, so much of his entire flock of turkeys, stated to number 3350, then on his Arizona ranch, as might be ready for market in the period mentioned. On their part the defendants, as buyers, agreed to accept deliveries at the ranch on such dates in the period as the seller should designate by notice to them. There was a proviso that the notice should state the approximate number of turkeys which would be delivered. Moreover, the buyers undertook on the dates designated to grade, pack and pay for the turkeys tendered at certain designated prices per pound, dressed weight, dependent upon their grade in accordance with a standard set forth in the contract. Except for the fact that the contract required payment on a basis of “dressed weight,” there was nothing to indicate which party should kill and dress the turkeys and there was no testimony on the point. Moreover, the contract says nothing about the seller’s being required to provide any facilities, such as cooling rooms or ice, nor any restrictions on delivery because of any high temperature conditions which might prevail.

It is undisputed that the seller gave timely and proper notice to the buyers that he would be ready to deliver a certain number of turkeys on November 13 and a further number on the next day. While these dates anticipated the first delivery date as set forth in the contract, no objection was made thereto. Moreover, the evidence discloses that one of the defendants—Anderson—was on hand on November 13 and not only accepted delivery on that date of the first lot of turkeys which plaintiff killed and dressed, but graded and packed them at plaintiff’s ranch and gave his check to plaintiff for them. It appears, however, that he did not stay on the ranch the next day to accept, grade and pay for the lot of turkeys which were killed and dressed on that day. Instead he returned to the ranch on the following morning, when he observed that the turkeys killed and dressed on the preceding day had deteriorated over night due to a lack of cooling facilities. While the seller, owing to a heat of 84 degrees outside on the previous day, had brought ice into the room where he placed the dressed turkeys so as to reduce the temperature therein to 70 degrees, he did not maintain the temperature at that point or lower after he had dressed the turkeys. As a consequence the dressed turkeys on the morning of the 15th appeared “green,” in the language of the trade, and were no longer in prime condition. Before Anderson observed the condition of this second lot he had