Foote v. San Francisco Produce Co.

THE COURT.

This is an appeal from a judgment and order denying the defendant's motion for a new trial in an action for damages for the alleged breach of a written contract for the sale and purchase of a crop of grapes.

The record shows that the defendant, through its duly authorized agent, visited the plaintiff’s vineyard, at Linden, San Joaquin County, on October 9, 1909, and there inspected the latter’s ripened crop of grapes; and thereupon and after such inspection entered into a written contract for the purchase of the entire crop, by the terms of which the buyer was to furnish the boxes, and the seller was to pick and deliver the grapes f. o. b. at Peters, a near-by station, for transportation to the defendant at its place of business in Oakland. On October 15th and 16th two car-loads of grapes were shipped from Peters to Oakland, which arrived at their destination on or about the nineteenth day of October. Thereupon a telephone communication occurred between the defendant and plaintiff, in the course of which the former told the latter not to ship any more grapes at that time. A few days later further talks over the telephone were had, as to the details of which the evidence is conflicting. The plaintiff testified that on these occasions he was demanding more boxes in which to pick and ship the grapes, and the defendant was objecting to the quality of the first two car-loads already shipped and

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received, and was also instructing plaintiff not to send any more grapes until notified by the defendant so to do. The finding of the court was in favor of plaintiff’s statement of the substance of these conversations, and such finding, in view of the conflict, will not be disturbed by this court.

Upon being thus advised by the defendant not to send on the rest of his crop the plaintiff ceased picking his grapes for several days, at the end of which time he received a notification from the defendant to send on more grapes. In the mean time, however, the remainder of the unpicked crop had been ruined and rendered .by rain and frost unmarketable and unfit for anything but feed for hogs. The plaintiff thereupon sold the grapes on the vines for hog food, realizing only a small part of their former value, and then sued the defendant in two counts to recover the purchase price of the two carloads of grapes which had been shipped and received by the defendant, and to also recover by way of damages the contract value of the rest of the grapes less the modicum received upon their sale as hog food. Upon the trial of the cause the defendant conceded that the first two carloads of grapes were sound and merchantable, and that as to them the plaintiff was entitled to recover; but as to the rest of the grapes and the plaintiff’s claim of damages for their loss, the appellant makes two main contentions: