Looney v. Scott

PLUMMER, J.

Action by plaintiffs for services performed in the drying of apples belonging to the defendant under an oral agreement. Plaintiffs had judgment and the defendant appeals.

It appears from the transcript that defendant is the owner of an apple. orchard situated in the county of Mendocino, state of California; that during the year 1922 he entered into an oral agreement with the plaintiffs for the drying of the apple crop then growing and being upon the orchard belonging to the defendant. The complaint in the action contains the following allegations: “1. That within two years .last past defendant employed plaintiffs to dry his 1922 crop of apples at the agreed price of $50.00 per ton, and that said defendant agreed to pay said plaintiffs for said services when the last of said apple crop was shipped to market. ... 2. That in accordance with said agreement, plaintiffs entered the employ of said defendant, and dried 33,287 pounds of apples at an agreed compensation of the sum of $832.15. That the said apples were all shipped to market on or before January 11, 1923, that the said defendant has

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not paid the plaintiffs the sum of $832.15,

’ ’

etc. The plaintiffs had judgment for the amount sued for.

While a large number of assignments of error are presented by the appellant, only two need to be discussed herein, to wit: 1. That the action was prematurely brought; 2. That the findings of the court are not supported by the testimony.

It appears from the transcript that the plaintiffs, prior to performing any services for the defendant, had a conversation with him as to the agreed price to be paid, and also as to when payment therefor should be made. After the conclusion of the taking of testimony the court permitted an amendment to the complaint, substituting the word ‘ ‘ Clover-dale” for the word “market.” This amendment was permitted in view of the fact that the testimony in some instances showed that Cloverdale was the contemplated market of the parties when negotiating as to the time when payments should be made for the services to be performed by the plaintiffs for the defendant, the testimony clearly showing that all of the apples had been shipped to Cloverdale a considerable period before the institution of suit. The evidence was also to the effect that offers for the apples were made by prospective buyers while the same were at Clover-dale, and that the final sale was made of the apples at such place. The evidence further shows that prior to the delivery of the apples at Cloverdale the defendant was offered a considerable sum in excess of that at which the apples were finally sold. The defense to the action was that the apples were not properly handled, that the work was not performed in a skillful and workmanlike manner by the plaintiffs, and that the defendant had been damaged in a considerable sum of money, by reason of the failure of the plaintiffs to perform their work in a skillful and workmanlike manner, and that the apples dried by them were not merchantable, and were necessarily sold at a very low price. It also appears by the testimony of some of the witnesses that after the defendant had been offered nine cents a pound for the apples, there was a very sharp decline in the price; that the price at Cloverdale dropped from nine cents to about five cents a pound; that the defendant finally sold his apples, or