Sutter v. Associated Seed Growers, Inc.

WOOD, J.

Plaintiff commenced this action to recover of defendants Associated Seed Growers Inc., and J. L. Talbott the sum alleged to be due as the balance of the purchase price of a crop of Lima seed beans. The first cause of action sets forth the execution of a contract between plaintiff and the two defendants wherein it was agreed that plaintiff would grow the beans and defendants purchase them at a price of five and one-half cents per pound, the total purchase price being $6,649.72. The second cause of action is based upon a common count for merchandise sold and delivered at defendants’ special instance and request of the agreed value of $6,649.72. A nonsuit was granted as to defendant Associated Seed Growers Inc., the plaintiff having failed to establish that defendant Talbott was acting as agent for the other defendant as undisclosed principal. A jury returned a verdict for the amount alleged to be due and defendant Talbott prosecutes this appeal from the resulting judgment.

[545]

Respondent and appellant entered into a contract on February 3, 1937, whereby respondent agreed to grow, sell and deliver to appellant a crop of Henderson Bush Lima beans for seed purposes. The contract was made upon a printed form which was filled in and signed by one Dreyfus, appellant’s employee. In its original form the printed blank contained this provision: “Seller further agrees to deliver an article not containing in excess of 5 per cent cylinder cracks and ivith a germination of 90 per cent or better.” Respondent objected to the provision calling for 90 per cent germination, saying to Dreyfus: “There is no germination test to go into the contract. I can contract with the Me Crea people without a germination clause.” Dreyfus thereupon struck from the contract the provision above quoted and wrote in ink upon the face of the contract the words, “to be recleaned beans choice recleaned same as commercial beans No. 18 screen”. The contract was then completed and signed. Mr. Dreyfus was not called as a witness and the testimony of respondent concerning the making of the contract was uncontradicted. The contract further provided that respondent was to sell the entire crop of the Sutter ranch and that appellant would furnish the seed. Respondent would also have the privilege to “rogue” the field (pick out beans of other varieties).

From time to time during the growing and harvesting of the beans they were inspected by a representative of appellant. Early in the threshing of the beans appellant’s representative objected to the manner in which the work was being done by one Dominguez, who had been employed with his machine to do the threshing. Respondent thereupon employed two others who completed the work under the inspection and to the satisfaction of appellant’s representative. When the beans were placed in the warehouse they were recleaned by the warehouse company with its equipment and crew and this work was inspected and approved by appellant’s representative. The beans were placed in the name of appellant at his request on November 27, 1937, while they were in the warehouse.