Rusconi v. California Fruit Exchange

THOMPSON (R. L.), J.

This is an appeal from a judgment in an action upon a fruit marketing contract to recover money alleged to have been wrongfully withheld by the respondent.

The respondent is a produce marketing corporation. June 1, 1917, the parties to this action executed a written contract by the terms of which the respondent agreed to promptly sell and market, as appellant’s agent, all his deciduous fruit which was to be delivered during a series of years, for a consideration expressed as follows: “for which [service] the Exchange shall deduct from the growers’ account sales 7% of the gross receipts in full compensation for such services. . . . Growers are entitled to any dividend in accordance with the last paragraph of Article XIX of the by-laws, . . . having carried out the provisions contained in the paragraph of Article XIX. . . . This agreement covers 65% of the shipping grapes of party of the first part.”

Article XIX of the by-laws, which is referred to in the foregoing contract, is set out at length in the complaint. The answer denies that said article, as alleged in the complaint, was in force at the time of the execution of the contract, and, upon the contrary, asserts that the article was subsequently amended and sets out the amended article as it was adopted.

During the seasons of 1917 to 1923, inclusive, the appellant delivered grapes to the respondent for marketing pursuant to said agreement. It was stipulated that the proportion of the proceeds from the sales of appellant’s grapes which were delivered in 1917, which funds were reserved, and to which appellant would be entitled under his contract as a refund when the obligation matured and became due in 1922, was the sum of $1342.27; that in the event appellant had fulfilled his agreement to deliver to the respondent sixty-five per cent of his shipping grapes for the year 1923, he would have been entitled to a refund of $3,045.79 when that fund matured at a later date; that not more than thirty-

[752]

five per cent of appellant’s grape crop for the year 1923 was delivered to respondent.

The complaint contains two counts, the first of which demanded the refunding of said sum of $1342.27, which the respondent claims was fully paid. The second cause of action demanded the refunding of said sum of $3,045.79, which the respondent denied was due the appellant for the reason that this refund obligation was conditioned upon the grower delivering to the respondent at least sixty-five per cent of his crop of 1923, which he failed to do. The court adopted findings in favor of the respondent, granting a nonsuit as to the second cause of action, and rendering judgment against the appellant on both counts. From this judgment an appeal was perfected.