United Fruit Distributing Co. v. Stone

STURTEVANT, J.

The plaintiff commenced an action ■to recover a judgment for money. The defendants answered and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the defendants and from a judgment entered thereon the plaintiff has appealed.

In its complaint the plaintiff pleaded its case in two counts—(1) for goods sold and delivered, and (2) for a balance due on an open book account. The answer denied all of the material averments in the complaint. In an amended answer the defendants set up a written contract, alleged to have been executed by the parties, and thereupon they alleged that the plaintiff had wholly failed to perform the same. In asking permission to make the amendment the

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defendants stated in open court that their purpose was to clearly present the issue that there had been no delivery. The plaintiff asserts that there was no evidence to sustain the verdict, and it addresses its contention to each count separately. In the view we take of the case we will consider both points together.

As throwing much light on the controversy, certain surrounding circumstances are of importance. Big Valley in Lake County is given up very largely to the production of pears. The pears are, to a large .extent, harvested, packed, and shipped east. There are many individuals, partnerships and corporations engaged in handling the shipments after the fruit is packed. However, there are not many concerns who are actually engaged in packing. It is, therefore, not uncommon to find several shippers who are having their packing done in one and the same packing-house. Among other packing-houses one is conducted by E. S. Griffitts. He packed for many persons, including United Fruit Distributing Company, the plaintiff and one of the companies engaged in shipping. The shippers sometimes act as consignees, and sometimes they purchase outright either for themselves or for others. One of the defendants, S. C. Stone, was a grower and had a crop of his oivn, and furthermore conducted a drying yard. Prior to the eighteenth day of August, 1925, M. H. Stitt, as the agent of the plaintiff, had purchased from various growers the whole or a part of the crop of such growers. Those purchases were evidenced by written instruments which were made by using certain blanks, which blanks were filled out and certain passages were scratched, thus evidencing the contract. S. C. Stone had been in the company of Mr. Stitt when some of the contracts were being negotiated. Later a written instrument was executed, which is the principal document involved in this case. A copy of it is as follows: