Giffen v. Selma Fruit Co.

COOPER, P. J.

This action was brought to recover damages for breach of contract, and was tried before a jury. A verdict was returned for plaintiff, upon which judgment was duly entered. This appeal is from the judgment and order denying defendant’s motion for a new trial.

The facts are in substance as follows: In September, 1904, the defendant entered into a contract in writing with L. F. Giffen and Co. (plaintiff’s assignor) by the terms of which it agreed to seed and pack in a first-class manner the raisins of Giffen & Co. for the season of 1904-5 at the rate of $1.35 per hundred pounds.

In December, 1904, the defendant, under the contract, seeded and packed the carload of raisins, out of which this controversy arose, for Giffen

&

Co., and received compensation .therefor according to the terms of the contract. It is alleged

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that instead of seeding and packing the raisins in accordance with the contract, the defendant negligently seeded and packed them so that they spoiled and became absolutely worthless. The verdict of the jury finds by implication that the allegation as to defendant’s negligence is true. The statement on motion for a new trial shows that the plaintiff introduced evidence tending to show that the raisins were not in good condition, and that their condition “was due to the fault and negligence of the defendant in seeding, processing and packing said raisins.” Appellant’s counsel, in their opening brief, very frankly and properly admit that “the evidence as to such wrongful acts of defendant was conflicting, and the jury found for the plaintiff. ’ ’

It seems, therefore, evident that the defendant violated its contract, and thus became liable for the damages it caused thereby.

It is contended, however, by the defendant that Giffen & Co., prior to the commencement of this action, had sold the raisins to McCord-Brady Co. of Omaha, and hence they argue that the right of action was in McCord-Brady Co. and not in the plaintiff. The decision of the case upon its merits is thus dependent upon the question as to whether or not Giffen & Co. had parted with the title to the raisins. The evidence shows that prior to the commencement of the action Giffen & Co. had agreed to sell to McCord-Brady Co. at Omaha a given quantity of raisins in accordance with a sample which had been sent. The carload of raisins involved in this suit was shipped to fill this order. The raisins were billed to the order of Giffen & Co. at Omaha subject to inspection. When the shipment was made Giffen