Turner, Kuhn & Fraser, Inc. v. Jones

TYLER, P. J.

This is an action for damages against the sheriff of Fresno County and the surety on his official bond for the value of certain cotton levied upon by him under a writ of attachment and sold under execution in the attachment suit.

The process issued out of an action in which Miller & Lux, Inc., was plaintiff and one A. H. Calkins defendant. Calkins was the lessee of a certain tract of land situated in the county of Fresno, which he had planted to cotton. In the month of July, 1919, he entered into a written contract with Turner, Kuhn & Fraser, Inc., a corporation, appellant herein, with reference to the sale of a portion of his crop. Under the terms of this agreement, which is denominated a cotton purchase contract, Calkins undertook to sell to the corporation 100 bales, each of 500 pounds in weight, of the cotton growing on the property, which at the time of the agreement had not been matured, picked, or harvested. The quality of the commodity contracted for was described in the agreement as being from the low-middling to good-middling grades first ginned from the crop, at a price of thirty-two cents a pound for middlings, with an allowance for the other grades off and on. The sum of $7,000, or $70 per bale, was paid on account of the purchase

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price, such sum being approximately one-half of the amount due under the contract, the balance to be paid for upon delivery.

At the time of the execution of the agreement Calkins was of the opinion that his harvest would amount to some 300 bales. He agreed to mature, harvest, and gin the quantity of cotton contracted for and deliver the same within the period intervening the date of the contract and December 25, 1919, in the city of Oxalis, county of Fresno, at any cotton-yard there situated, the balance of the purchase price of each bale to be paid upon delivery as delivered.

In the attachment suit above referred to the sheriff levied upon the whole crop of cotton as the property of Calkins. Appellant made its third party claim, and the plaintiff in the attachment suit thereupon indemnified the sheriff and the attachment held. When the entire crop was harvested, contrary to expectation it amounted to but thirty-six bales, all of which were within the grades stipulated for in the contract of purchase. Plaintiff again gave notice to the sheriff, claiming these thirty-six bales under its contract, but the sheriff proceeded to sell the cotton under execution in the attachment suit. The sale was made to Miller & Lux, Inc., the plaintiff therein, for the sum of $5,462, and this amount is conceded to be the reasonable market value of the product at that time.