California Packing Corp. v. Emirzian

BEASLT, P. J.,

pro

tem.

On April 9, 1913, Pettit & Wilson, a copartnership, contracted in writing to sell and deliver to Griffin & Shelley Company the crops of peaches to be grown during the seasons of 1913 to 1917, inclusive, upon certain lands owned by the partnership. In 1916, Pettit & Wilson entered into an executory agreement for the sale of the land to the defendant, pursuant to which defendant has ever since been in possession of and farming the land.

This action grows out of that transaction, and it is alleged in the complaint that the Griffin & Shelley Company assigned the above-mentioned contract to the plaintiff. The defendant delivered the fruit from the land to the plaintiff for the season of 1916, but failed and refused to deliver it • during 1917. The action is for damages for this failure to deliver the crop in that year. The defendant had judgment for his costs.

The plaintiff was granted a new trial' upon the sole ground that the court had failed to find upon the issue of the assignment of the fruit contract above mentioned, from Griffin & Shelley Company to the plaintiff. Both parties appeal from the judgment. Defendant desires the order granting a new trial reviewed upon the ground that the issue as to the assignment of the contract was, in view of certain other findings of the court, immaterial. The plaintiff was not satisfied with the order granting the new trial because it

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was granted upon the single ground above set forth. The questions raised by the parties are entangled, and while the appeals might, we think, be disposed of on technical grounds, we are inclined to decide all questions raised; and we are the more disposed to this course because of the manner in which the views of counsel are presented. First, then, we will consider the contentions of plaintiff. [1] The trial court found that defendant did not at any time, or at all, assume or agree to perform the contract of Pettit

&

Wilson with the Griffin & Skelley Company to deliver the fruit, and that the delivery of the 1916 crop was not made pursuant to the terms of that contract. The plaintiff insists that this finding is against the evidence, and conflicts with another finding which its counsel contends is inferentially at least upon the same point of fact. The other finding, with which it is asserted the foregoing finding conflicts, is briefly this: That prior to the execution of the contract for the sale by Pettit & Wilson to the defendant of the land upon which the fruit was to be produced Wilson “at defendant’s request asked the manager of Griffin & Skelley Company by telephone if the company would accept the peaches grown upon said land from defendant,” and that the manager stated to Wilson that he would do so. We do not think these findings necessarily conflict with each other. They may both very well be true. The conversation above set forth between Wilson and Griffin & Skelley Company’s manager, although had at Emirzian’s request, may have had no other purpose- than to seek information. It would take something -more definite than this conversation to make a binding agreement on Emirzian’s part to assume and perform the contract between Pettit & Wilson and Griffin & Skelley Company, and the court’s finding that Emirzian did not assume the performance of the contract to deliver the fruit was illuminated further by the testimony of Wilson and that of Emirzian himself. Wilson testified that Emirzian requested of him to call upon Eowan, Griffin