Filice & Perrelli Canning Co. v. Walton

'STURTEVANT,

The plaintiff commenced an action against the defendants, the defendants appeared and answered, a trial was had before the court sitting without a jury, the trial court made findings in favor of the plaintiff, and from a judgment entered thereon the defendants have appealed.

The plaintiff’s complaint was framed in two counts. In the first count it pleaded a breach of contract, alleging that the defendants had failed to deliver personal property theretofore sold to the plaintiff. In the second count it alleged that the defendants had converted the property. The defendants filed a demurrer “to plaintiff’s complaint. ...” The demurrer was overruled. It is now claimed that the order overruling the demurrer was erroneous. In this behalf the defendants assert that the second cause of action did not set forth facts sufficient and that the demurrer should have been sustained. It is sufficient to call attention to the fact that the defendants did not demur to the second count, but they demurred to the whole complaint. However, if we examine the second count, it is clear that it did state facts sufficient and if a demurrer had been directed against it that the demurrer should have been overruled.

The defendants complain because the trial court sustained plaintiff’s objections to evidence offered by defendants at the trial. An examination of the record discloses that the point covers two rulings on the rejection of evidence and that the evidence offered was outside of the issues.

The defendants specify certain findings and assert that they are not supported by the evidence. In so specifying the findings we understand the defendants to be acting through an abundance of precaution and that their real objection is that they desire to clearly make the point that the title did not pass and that there was no sale, but that there •was an executory agreement to sell. This point has been very fully briefed by the defendants and by the plaintiff. The evidence, both documentary and oral, is before us. A most

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cursory examination discloses that on the eighth day of January, 1924, by an instrument in writing, Walton & Berry, as lessees, sold to the plaintiff the crop of tomatoes to be grown on 45 to 50 acres of land which was under léase to them and which is located about two miles east of Gilroy on the Hot Springs road and runs north from that road to Sixth Street. The contract was in writing and, among other things, .contained a passage as follows: “This contract is intended and understood by both parties to pass title to said crops and to constitute an absolute sale, ...” The contract also recites that Walton & Berry “has sold” and that Filice & Perrelli “has bought.” Other passages are ■consonant with the contention that there was a sale as distinguished from an agreement to sell. No evidence, oral or documentary, was introduced at the trial tending to weaken this theory. There was evidence introduced that the defendants were lessees of the land described in the contract; that said land is also known as the Elizabeth Martin tract; that said tract contains 463 acres and that of that acreage 38 acres were planted to tomatoes in the season of 1924. These facts warranted the trial court in holding that the contract constituted a sale.