Carnation Co. v. Marcevich

DRAPER, J.

By contract, defendants became the exclusive wholesale distributors of plaintiff’s milk and dairy products in the Watsonville area. After five years of operation under the contract, defendants exercised their option to terminate it. Plaintiff brought this action on the common counts to recover a balance claimed due for products theretofore delivered to defendants. Defendants answered by general denial and pleaded, by way of counterclaim, a common count for money had and received. At pretrial conference, the parties agreed that their dispute involved the prices for fluid milk charged by plaintiff under the written contract. Plaintiff contended that it had the right to fix fluid milk prices to be charged, and defendants contended that plaintiff could charge only the minimum resale prices fixed by the State Bureau of Milk Control. The pretrial order recited these contentions and the admission in evidence of the written contract of the parties.

The ease was tried to the court sitting without a jury, and much extrinsic evidence was introduced by both sides as to ■ the circumstances under which the contract was entered into and the acts of the parties under it during the five years it remained operative. The court made findings in the general language of the common counts in favor of plaintiff on the

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complaint and against defendants on their counterclaim. Judgment was for plaintiff for $5,328.21. Defendants appeal.

Because we find little of substance or relevance in much of appellants’ argument, it is difficult for us to summarize their contentions.

However, as we understand them, they contend that since the pretrial order recites the existence of an express contract, it supersedes the pleadings and thus requires a “finding” as to whether the price provision of the contract is ambiguous. Contending that the contract is ambiguous, they analyze the parol evidence and conclude that it compels interpretation of the price provision in their favor, thus requiring reversal of the judgment. We cannot agree.

The pretrial rules provide only that the pretrial conference order, “where inconsistent with the pleadings, controls the subsequent course of the ease” (Rules for the Superior Courts, rule 8.8). There is no such inconsistency here. The contract had been fully performed by plaintiff and nothing remained to be done under it except the payment of money. Thus plaintiff could declare generally upon the common count