Clayton v. Randolph Marketing Co. (1921) · DecisionDepot

Clayton v. Randolph Marketing Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 5, 1921 No. Civ. No. 4035.Published

Before: Sturtevant

Synopsis

The facts are stated in the opinion of the court.

STURTEVANT, J.

The plaintiffs sued the defendant for an accounting; the trial court awarded the plaintiffs a judgment for $4,882.13, and the defendant has appealed. The trial court tried the case sitting without a jury, and made findings in which it found that the defendant was a

[524]

corporation; that on September 20, 1918, the plaintiffs and defendant entered into a written contract which is fully set forth in plaintiffs’ complaint; that the plaintiffs have fully performed said contract; that in doing so the plaintiffs delivered to the defendant to be marketed sixty-five carloads and some broken lots of lettuce; that the defendant received the produce and sold the same for $69,470.98 on board the cars at the place of sale; that the defendant paid freight and expressage in the sum of $15,736.63; that the defendant paid expressage for sundry items in the sum of $65.75; demurrage, $32.36; refrigeration, $.175; taxes,. $237.30; and that the net sale price on board the ears at point of delivery was $53,223.94. The court also found that the defendant had advanced to the plaintiffs $37,697.03, and that it was entitled to a commission of twenty per cent on the net sales or in the sum of $10,644.79. Deducting the advances and the commission from the net sales item above1 stated, the difference is $4,882.12, the amount for which the judgment was ordered. This controversy involves the correct interpretation of the meaning of the contract in so far as it provides for the payment by the plaintiffs to the defendant of a commission. The contract is quite long and it is sufficient for the purposes of the decision in this case to state that the provisions concerning the commission are contained in a paragraph worded as follows: ‘ ‘ That for a consideration mentioned in paragraph four of this agreement the growers hereby appoint the distributor their exclusive agent for selling and distributing all lettuce and spinach owned, grown, or controlled by the growers, for the seasons of 1918 and 1919, upon a commission of 20% for the net f. o. b. destination sales of all lettuce and spinach delivered to and accepted for shipment at Brawley, California, ...” The dispute between the parties is whether under the above passage the defendant was authorized to compute a commission of twenty per cent on the sales price at the point of destination after deducting freight, or whether it should have computed the commission on the sales price at that point without deducting freight. The contract was written by the defendant and in case of uncertainty not removed by sections 1635-1653 of the Civil Code, the language should be interpreted most strongly against the defendant. , (Civ. Code, see. 1654.) When the defendant answered it annexed

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to its answer a document which it called a balance-sheet. That balance-sheet shows the defendant’s claim as to its rights with reference to each particular carload. As stated above there were sixty-live carloads.. As to thirty-three of these carloads no freight is charged—apparently the contents of the car were sold subject to the freight being paid by the purchaser; as to twelve of the cars charges were made for such items as detention, demurrage, brokerage, and cartage ; where freight, refrigeration, and cartage were incurred, as on the first item, the defendant sought to charge commission on the gross sales price $1,513.35; where a carload was sold without incurring any of those expenses, as on the second shipment, the defendant sought to charge a commission on the sales price $685; a similar practice was followed with reference to other shipments from the tenth day of February, 1919, the date of the first shipment, until the fifth day of April, 1919, the date of the last shipment. It is claimed by the defendant that it was authorized to base its commission on the gross sales price at the point of destination because it was negotiating and attending to sales in large amounts, and was advancing moneys to finance the transactions. But this same claim could be made, with force less in degree only, with reference to the second car on which the defendant did not advance the freight. If the appellant is right in the contention which it made in the lower court, that its commission should be based on the wholesale price, including freight, such contention has its support in this: that the freight item was inserted to augment the commission. But if the parties were seeking to augment the commission, it should have been augmented by the amount of the freight whether the freight was paid by the defendant or the purchaser. Certainly no one would claim that twenty per cent was to be allowed as interest for a few days on the freight moneys advanced. If such an argument should be made it would require express language in the contract to uphold it. When the defendant did, from February to April on thirty-three of the carloads, enter a charge for commission based on the sale at destination without including any freight, the defendant went far by its own act in construing its contract adversely to the contention it now makes.

Synopsis

STURTEVANT, J.

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