Perkins v. Pacific Fruit Exchange

NOURSE, P. J.

Plaintiff sued on an alleged guaranty of a minimum return on fruit delivered to the defendant and sold for plaintiff’s account. The cause was tried with a jury and plaintiff had judgment. The defendant moved for an instructed verdict and, this motion having been denied, thereafter moved for judgment notwithstanding the verdict. This motion was denied and defendant appeals upon typewritten transcripts.

The plaintiff was the owner of a pear orchard; the defendant for twenty years past had been engaged in the business of receiving fruit on consignment and selling the same for the account of growers. The principal place of business and office of the defendant was located at San Francisco. Special agents were employed at various points in the state, one of whom was located at San Jose. During the year 1929 this special agent procured a contract from the plaintiff whereby the defendant handled his pears upon consignment, taking a seven per cent commission for the service. During the year 1930 the plaintiff approached the special agent in San Jose on several occasions, urging him to purchase on behalf of defendant his 1930 crop. The agent declined to do so, telling him that if he desired to sell his pears he should go to another company which was engaged in that business. The plaintiff testified that the agent then told him that if he would let the defendant ship his pears he

[280]

would net the plaintiff from fifty cents to seventy-five cents on each box. The agent testified that he merely told the plaintiff that his pears “should bring around fifty cents to seventy-five cents a box as they did last year”. Plaintiff also testified that although the defendant thus undertook the additional obligation of a guaranty he was to pay the defendant the same commission for handling his crop as he paid in 1929. Plaintiff employed a truckman to haul his pears to the defendant’s plant and as each lot of fruit was delivered to the defendant’s plant a receipt was given to the truckman which .expressly stipulated that the defendant “in no way guarantees that the grower shall receive a particular or any price for said fruit”. After each lot of fruit was packed out the company mailed to the plaintiff a statement entitled “Consigned fruit pack out statement”, and after each sale was made by the defendant it mailed to the plaintiff a statement specifying the number of boxes sold, the date sold, the variety and total selling price yielded. Each of these statements itemized the amount of charges incurred with respect to each lot sold and specified the profit or loss on each lot. Where profit was shown in the statement a cheek was mailed to the plaintiff with the statement and the proceeds of checks so received were retained by him without protest. The bulk of the fruit was sold by the defendant by the end of the year 1930. In July, 1931, the defendant made demand on the plaintiff for the payment of $760 claimed to be due for charges in handling the fruit in excess of the total proceeds. On August 8, 1931, the plaintiff, after consultation with his attorneys, for the first time informed the defendant that he claimed a guaranty of the net return from the sale of the fruit.