Caldwell v. Gem Packing Co.

HANSON, J. pro tem.

Appellants, Harry CaIdwell and A. Himmelfarb, doing a wholesale business as Model Meat Company, brought this action against the Gem Packing Company, a corporation, predicated upon an alleged written contract between the parties, and against the Producers Packing Company, a corporation, which subsequently purchased the plant of the Gem Packing Company. The theory upon which liability was predicated against' the purchasing corporation was based on the claim that the contract, aside from certain personal agreements therein contained, was a lease of a part of its plant by Gem to plaintiffs, and so Producers took title thereto subject to the lease and the possession which plaintiffs alleged they held'to a part of the premises. Demurrers filed by Producers to the original complaint, the amended complaint and the second amended complaint were all sustained, the last being without leave to amend.

The second amended complaint was in two counts, one for a declaratory judgment and the other for a judgment for damages because of plaintiffs’ alleged eviction from the plant. In the first two complaints plaintiffs alleged that one Oswald was at all times the owner of the plant and its premises and that he evicted the plaintiffs on May 5, 1941. In the last amended complaint, however, plaintiffs alleged that it was Producers which evicted them, without any showing therein as to the reason for this material change in allegation.

The contract under which the plaintiffs claim is in the form of a letter from the Gem Packing Company to the plaintiffs under date of February 2, 1941, which was “accepted” by the signature of the plaintiff Caldwell but without the signature of plaintiff Himmelfarb. For our purposes we shall assume, without deciding, that this acceptance was sufficient to make a binding contract notwithstanding the claim made to the ■ contrary by the respondent. The letter

[83]

recites that plaintiffs on their part are to deliver not less than 100 head of livestock monthly to be slaughtered by Gem within 24 hours of the receipt thereof, and for which plaintiffs are to pay Gem a certain price per head depending upon the type of animals, whether sheep or cattle. The letter recites that Gem shall supply all necessary labor and equipment and that it is to furnish not only refrigeration for the livestock killed but in addition cooler space suitable for display and office space for plaintiffs. The letter closes with the statement that the arrangement as narrated is to continue for a period of three years. Both counts of the complaint are predicated on the theory that the letter constituted a lease, and on that theory the first count seeks a declaration of the rights and duties of the parties under the alleged lease, and the second count seeks damages for eviction along with incidental damages alleged to have been suffered because of Producers ’ breach of the terms of the lease.