Clark v. United Fruit Distributing Co.

BURROUGHS, J.,

pro

tem.

This is an action for damages. The cause was tried with a jury and a verdict rendered in favor of the plaintiff and against the defendant United Fruit Distributing Company for the sum of $2,500. From the judgment entered thereon said defendant appeals.

Appellants urge several points upon this appeal. The first of these is that there is a material variance between the allegations of the amended complaint and the proof. There are nine separate causes of action set forth in the amended complaint. The first six causes of action are based upon similar contracts which differ only in the names and the amounts involved. The last three concern the defendant Reedley National Bank, which was an escrow-holder of certain moneys deposited with it in accordance with the terms of the contracts referred to in the first six counts of the amended complaint.

At the trial the money held by the Reedley National Bank was by stipulation of the parties deposited in court and no judgment was entered concerning said bank. As heretofore stated, the six causes of action being the same except as to the names and amounts, a decision of the question involved by reference to the first count only will be decisive of all six.

It is alleged in the first count of the amended complaint “That on or about the 19th day of September, at Reedley, California, plaintiff and the defendant, United Fruit Dis

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tributing Company, entered into an agreement in writing wherein and whereby plaintiff agreed to sell to the said defendant, and the defendant, United Fruit Distributing Company, agreed to buy certain Muscat U. S. Grade #1 grapes; that under the terms of said written agreement said defendant agreed to pay, upon delivery, this plaintiff for said grapes at the rate of Thirty Dollars ($30.00) per ton, and thereafter and under the terms of said contract plaintiff delivered to said defendant at Reedley, California, 141496 pounds of Muscat grapes, U. S. grade #1, and defendant paid said plaintiff for said grapes the sum of Twenty-one Hundred Thirteen and 43/100 Dollars ($2113.43) and no more; that said plaintiff was at all times during said grape shipping season of 1925 ready, able and willing to deliver to said defendant 108504 pounds of Muscat grapes, U. S. Grade #1, in fulfillment of the terms for the balance of said grapes to be delivered under said contract, and said plaintiff duly tendered said grapes to said defendant at its packing plant at Reedley, California, pursuant to the terms of said written contract; that the said defendant then refused to accept and ever since has refused to accept said grapes so tendered as hereinbefore set out and refused to. pay for said grapes so tendered pursuant to its agreement, or otherwise, to the damage of plaintiff in the sum of Sixteen Hundred Twenty-seven and 56/100 Dollars (11627.56).”