Johns v. Sanfilippo

THE COURT.

This is an appeal by the defendant from a judgment in plaintiff’s favor and from an order denying a new trial.

The action was brought to recover damages for the alleged breach by the defendant of an agreement in writing between the plaintiff’s assignors and the defendant, by the terms of which the former were to pick, cut, and spread upon trays for drying the apricot crop of the latter for the season of 1914, and for the agreed price of $8 per green ton. The plaintiff alleges that after about a week spent in the work of picking

[495]

and" preparing for drying of the crop, the assignors were, without cause, discharged by the defendant, and prevented from completing their contract, and he therefore sues on their behalf for the balance due for so much of the crop as they had gathered prior to their discharge at the agreed price therefor per ton. The defendant in his answer denied the allegations of the plaintiff's complaint relative to the discharge, and also pleaded a counterclaim for the alleged loss he had sustained by reason of the insufficient manner in which the plaintiff’s assignors had essayed to perform their contract, and by reason of their abandonment thereof before its completion.

The court found that the undisputed facts averred in the complaint as to the terms of the contract and entry upon its performance were true, and then proceeded to find that ‘'On July 25, 1914, said defendant discharged said J. T. Johns and N. T. Johns from said employment and ejected them from the premises on which said crop of fruit was situated, and prevented them or either of them from the picking, cutting and spreading on trays of said crop of apricots, and refused to pay them for the work already done, and refused to comply with the terms of said agreement.”

The appellant assails this finding as unsupported by the evidence; but upon a careful reading of the record we think that there is some substantial evidence going to show that while the plaintiff’s assignors, after a little more than, a week spent in the harvesting of the crop in question, were dissatisfied at the defendant’s slowness of payment, and were rather disposed not to go on with the contract, the defendant quickly took advantage of this frame of mind on their part to take the direction of their pickers out of their hands and order them off the premises, and that therefrom the court was justified, in making the finding complained of.