Hoff v. Lodi Canning Co.

BURNETT, J.

The action was to recover $2,704.73, the balance claimed to be due for a quantity of tomatoes sold by plaintiff to defendant. On February 11, 1918, the parties entered into a written contract providing for the sale and purchase of all the tomatoes to be grown that year by plaintiff and fixing the price at twelve dollars per ton, but the concluding clause of said agreement was: “If Stockton or Sacramento price is more than twelve dollars buyer agrees to pay same advance.” Defendant in its answer claimed that prior to any delivery an oral agreement was entered into under the terms of which the purchase price was changed from twelve to fifteen dollars per ton. This was disputed by plaintiff, and it is admitted by appellant that, as to this issue, the evidence was conflicting, and since the court found in favor of respondent, the finding is binding upon this court. Appellant declares that “this leaves only one question to be determined, which is a construction of the last paragraph in the contract” quoted above, and that the appeal is based upon thr.ee propositions :

“First: that the price referred to in the contract meant ‘market price,’ and it was so understood by the parties to the agreement.

‘ ‘ Second: That the court should have found as a fact what the ‘market price’ of tomatoes was in Sacramento or Stockton in the season of 1918.

“Third: That no ‘market price’ in either of said cities was proven by plaintiff.”

It is apparent that the said contract was somewhat uncertain in the reference to “Stockton or Sacramento price.” As the sale of a large quantity of tomatoes was contemplated and as the canneries were the only purchasers under such circumstances, it is quite probable though that the

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parties referred to the price that canneries in said cities would pay for tomatoes at any time within the season of 1918. There is no evidence of any parol agreement or understanding at the time of the execution of this contract as to the meaning of said expression, although subsequently, according to plaintiff’s testimony, the officers of the company told him “that if any of the other canneries pays twenty dollars they will pay me twenty dollars.’'’ Other witnesses testified! to the same effect. This may be regarded as some evidence, in addition to the language of the written instrument, that the parties contemplated the highest price that might be paid by the canneries in said cities. We may add that if any ambiguity exists in the use of said expression it should be resolved in favor of respondent, since the contract was prepared by appellant.