Associated Fruit Co. v. San Joaquin Fruit Growers & Shippers, Inc.

TYLER, P. J.

Action to recover a commission provided for under a contract for the sale of certain grapes.

Plaintiff Associated Fruit Company is a corporation engaged, among other things, in marketing fresh grapes grown in the San Joaquin Valley. Defendant San Joaquin Fruit Growers and Shippers is also a corporation conducting a like business, and defendant Dan K. Kazanjian is an individual who produces, buys, and sells fresh grapes. On February 20, 1922, the parties entered into a contract in writing whereby said defendants agreed to deliver to plaintiff during the month of September, 1922, twenty-five carloads of Muscat grapes in open lugs, which plaintiff agreed to sell for the account of said defendants, and for which services

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to be performed on the part of plaintiff defendants agreed to pay five dollars per ton. It is alleged in the complaint that under the usage and custom of the trade in fresh grapes a carload ordinarily contains twelve tons and that under the contract defendants were bound to furnish three hundred tons. Upon the execution of the contract plaintiff made an accommodation advance to defendants in the sum of two thousand dollars, for which defendants gave their promissory note payable on October 1, 1922. The contract provided that an accounting should be made as soon as the grapes were sold and the amount due therefor collected, and that plaintiff might repay itself from such proceeds the amount of such advances. The complaint then charges that defendants wholly failed and refused either to furnish grapes or to repay the money.

It appears from the record that prior to the institution of this proceeding- plaintiff had brought suit on the two thousand dollar note as soon as it became due, and recovered judgment thereon, and that this judgment has been fully satisfied and paid. The present action was brought for the recovery of the sum of fifteen hundred dollars, the commission provided for in the contract for the sale of the three hundred tons of grapes. By way of plea in abatement defendants set up plaintiff’s recovery on the promissory note in the former action, which action they claimed amounted to a rescission on the part of the plaintiff of the contract, which deprived it of any right of action in damages for a breach of the contract which it otherwise might have.