Lawson v. Rusconi

BARNARD, P. J.

The defendants were in the business of purchasing fresh grapes in the San Joaquin Valley and shipping the same to and selling them in various eastern markets. It is an admitted fact that shippers of such grapes frequently suffered loss and damage by reason of decay and mold of the grapes, when shipped in ordinary refrigerator-cars. In September, 1927, the defendants entered into two contracts with the plaintiff, each of which contracts recited that the plaintiff was the owner and entitled to the exclusive use in California of a certain device or apparatus known as an Esofumer, being a device for the diffusion of sulphur dioxide gas. Under these contracts, the plaintiff leased to defendants and the defendants hired from the plaintiff two of these machines, with the right to

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use the same for a period of three months, the defendants paying a deposit of $100 on each machine, which deposit was to be returned when the machines were redelivered. The defendants further agreed to pay to the plaintiff $10 for each car of grapes treated by the use of said Esofumer, the plaintiff agreeing to furnish the necessary gas. It is conceded that these machines were to be used to diffuse gas through cars of grapes after they were loaded, and that the purpose of such gasing process was to prevent mold and decay of the grapes while in transit. The only contest here is as to the degree of perfection required of the process. During the fall of 1927, defendants shipped 307 cars of grapes, of which 174 cars were treated with this process and 133 were not. This action was brought to collect the stipulated price for the cars treated, at $10 per car. In their answer, the defendants set up the defense that many of the cars arrived in eastern markets with the grapes in a moldy and decayed condition. From a judgment in favor of the plaintiff, the defendants have appealed.

The various points made by appellants may be summarized as a contention that the evidence is not sufficient to support various findings of .the trial court to the effect that the plaintiff had fully performed his contracts, for the reason that the trial court overlooked and ignored the warranty implied by law, which was to the effect that the grapes would arrive at market free from decay and mold; and that since the evidence shows that some of the grapes arrived in a moldy condition, the contracts were not complied with by the plaintiff. Appellants contend that section 1770 of the Civil Code applies to these contracts, and that there was therefore an implied warranty that the use of this apparatus and process would result in accomplishing the particular purpose for which it was used. Under the statute referred to, such an implied warranty would only be that it was reasonably fit for such purpose. Appellants, however, take the position that the purpose to be here accomplished was a total prevention of all decay and mold of the grapes. They rely upon the following testimony of Edna Rusconi, one of the appellants: “Mr. Rusconi asked Mr. Babcock, and I may have asked questions too but I don’t remember, to tell him what the Esofumer would do and the gassing process and it was—there was considerable