Redwood Turkey Hatchery, Inc. v. Meadowbrook Farms

VAN DYKE, P. J.

This is an appeal from an order granting a new trial to defendants upon the ground of newly-discovered evidence material for the defendants which they could not with reasonable diligence have discovered and produced at the trial. Although the motion was made upon all statutory grounds (Code Civ. Proc., § 557), the order was specifically based upon the ground above stated.

Plaintiff and appellant, Redwood Turkey Hatchery, Inc., a corporation organized and domiciled in Minnesota, brought the action against Meadowbrook Farms, a copartnership, having its place of business in Placer County. By its complaint it alleged its corporate capacity as a Minnesota corporation and that it maintained no place of business within this state;

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that on January 14, 1954, it had paid to defendants the sum of $500; that on the 23d day of February following it paid to defendants the sum of $7,000; that for these sums defendants agreed to deliver on or before February 28,1954, 20,000 turkey eggs; that the eggs had not been delivered; that upon failure of delivery the plaintiff had demanded that the defendants deliver the eggs or refund the money paid on the purchase price thereof; that defendants refused to do either. Defendants answered, denying that the plaintiff had paid them said sums or any sum upon any agreement by defendants to deliver turkey eggs therefor; and affirmatively alleged that they had received the money, not from plaintiff, but from one Melbourne Dahmes; that Dahmes paid the funds to defendants to apply upon an indebtedness of Dahmes to defendants for turkey eggs theretofore delivered to him and for which he had not paid; that they had applied the funds so received upon Dahmes’ account with defendants in accordance with his agreement that they do so. Upon these issues the cause went to trial. Dahmes, as a witness for plaintiff, of which corporation he was president and managing officer, testified that he had never owed anything to defendant; that the unpaid account for eggs delivered, upon which defendants had applied the sums received, was the debt of another Minnesota corporation known as Mixa Turkey Enterprises, Inc.; that he had negotiated the agreement alleged in the complaint with B. L. McIntyre who acted for the defendant copartnership, at a time when McIntyre was in Minnesota and after the Mixa Turkey Enterprises, Inc., had received and failed to pay for eggs shipped during the previous shipping season; that McIntyre knew or should have known from their conversations that Dahmes was dealing for plaintiff corporation in agreeing to purchase eggs from defendants; that the funds forwarded to defendants were the funds of plaintiff corporation and not the funds of either the Mixa Turkey Enterprises, Inc., or of Dahmes. McIntyre testified that he had negotiated with Dahmes concerning the prior shipments which were made during the shipping season in 1953; that he had then dealt with Dahmes personally, knowing nothing, of any corporate entity; that Dahmes had failed to pay, although often pressed for payment; that in January, 1954, at the beginning of the next shipping season, he had visited Dahmes in Minnesota at a time when the, latter was operating a display booth at a turkey breeders and growers convention; that he had looked him up for the purpose of attempting to collect the money he owed defend