Arkelian v. National Bank of Visalia

MARKS, J.

In this action appellants brought suit against respondents for $500 alleged to have been had and received by respondents for the use of appellants. Judgment was rendered in favor of the respondents and this appeal was taken upon the ground that the findings of the trial court do not support the judgment, and, that upon the findings, judgment should have been rendered for appellants, if not for the full amount claimed, then at least, for the sum of $250.

The evidence shows that appellants were copartners engaged in the business of buying dried fruits; that the National Bank of Visalia was a national banking corporation and that L. C. Hyde was its liquidating agent and acted for it in the transactions involved in this case. The bank owned a vineyard in Tulare County upon which were grown the grapes which were cured into the raisins involved herein.

On June 15, 1926, in a written contract, appellants agreed to buy from the bank, and it agreed to sell to them, twenty-five tons of guaranteed soda-dipped Thompson seedless raisins at the price of six cents per pound. The bank agreed “to properly dry and cure such fruit and to deliver the same, thoroughly and properly dried and cured, ungraded as to size, choice in quality, of good color, sound, and in original condition, without addition of water, free from defective fruit, slabs or damage of any kind, and in good marketable and merchantable condition, ’ ’ to the appellants at Fresno, California, either as a whole or in deliverable lots as soon as possible. Appellants paid the bank $500 on account of the purchase price of the raisins, which is the subject of this action.

When part of the raisins were cured, respondents tendered delivery, which was refused by appellants upon the ground that a large percentage of the raisins were off color and so were not “choice in quality” and therefore not in a “good marketable and merchantable condition.” The only question presented was as to the color of the raisins, appellants claiming that they were about fifty per cent dark and there

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fore not of choice quality as soda-dipped raisins. Respondent presented evidence to the effect that only eight or nine per cent of the raisins were dark and that the balance were of the good amber color desired in soda-dipped raisins. After the rejection of the raisins by appellants on account of their color, the parties conferred several times in an effort to reach a settlement of the difficulty. Appellants offered to take the raisins and sort them, accepting and paying for only the amber colored ones at the contract price and either rejecting the others or selling them for the account of the respondent bank at the market price for such fruit. If this offer were not accepted by the bank, appellants advised it to sell the raisins at the market which was then from five to five and one-half cents per pound. The bank sold the raisins for five and one-half cents per pound, which was the “top market” for soda-dipped Thompson seedless raisins at the time. The trial court found that the raisins tendered appellants were of the quality described in the contract; that appellants had refused to accept the same without lawful excuse, and rendered judgment for respondents. Appellants attack the finding of the court as to the quality of the raisins and maintain that there was a mutual rescission of the contract by the parties.