Files v. Derderian

LANGDON, P. J.

This action was brought to recover damages for failure to deliver a crop of grapes, alleged to have been purchased by the plaintiff from the defendants. The court found that the grapes were the property of the defendant H. M. Derderian, and that the defendant J. Hov. Derderian had no right, title, or interest in the same. J. Hov. Derderian was the son of the other defendant, and the evidence shows that he signed the contract for the sale of the grapes and received the several sums of money paid

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on account of such purchase by the plaintiff. At the time of the trial J. Hov. Derderian was in the United States army and could not be served. The action proceeded only against the other defendant, H. M. Derderian, who is the respondent here. A copy of the contract for the purchase of the grapes was introduced in evidence. It was signed by J. Hov. Derderian as the “seller.” It purported to sell the crop of grapes produced on the “Derderian Ranch” at a stipulated price and guaranteed that the same was the sole and absolute property of seller free from all encumbrances. There was also introduced in evidence a copy of a complaint in the justice’s court of Fresno, sworn to by the plaintiff, charging J. Hov. Derderian with obtaining money under false pretenses. This complaint related to the same transaction sued upon here and alleged that the said J. Hov. Derderian falsely and fraudulently represented to the plaintiff that he was the sole and absolute owner of the crop of grapes and had the right to sell the same, and that by reason of said representations, he obtained certain sums of money from the plaintiff as advance payments. The evidence is uncontradicted that the plaintiff did not deal with H. M. Derderian in the transaction sued upon, and did not speak with him at all with reference to the same. Appellant, however, seeks in this action to charge the respondent with the contract upon the theory of ostensible agency. In support of this theory, he urges upon our attention the testimony of the plaintiff to the effect that in 1917, the year previous to this transaction, the plaintiff made a contract for the purchase of the grapes upon the Derderian ranch. It is argued that because this contract of 1917 was signed by J. Hov. Derderian and delivery was made and the money paid thereunder to J. Hov. Derderian, the plaintiff, when he entered into the contract the succeeding year, had a right to rely upon the impression given in 1917 that J. Hov. Derderian had authority to sell the crop grown on the ranch. It is contended that H. M. Derderian is estopped from denying the relationship of principal and agent in view of these previous transactions and business dealings with the appellant. But the testimony in regard to this particular transaction in 1917 is conflicting. The defendant H. M. Derderian and his son M. H. Derderian both testified