Fay Fruit Co. v. Ryan

CONREY, P. J.

In December, 1918, the defendants were the owners of an orange grove in Riverside County on which there was a crop of oranges then nearing maturity. On December 10, 1918, the plaintiff loaned to the defendants on the security of said citrus fruit crop the sum of $600, and defendants placed said crop in the hands of the plaintiff “to market for my account and risk on its regular terms. . . . Should the net proceeds of my said crop not be sufficient to cover said indebtedness, I hereby agree to pay the Fay Fruit Company on demand any balance due it.”

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The quotations are from a memorandum at that time signed by the defendants and delivered to the plaintiff. In this action the plaintiff sued on that agreement. Plaintiff alleged that it took charge of said citrus fruit crop and marketed a part thereof, and received therefor only certain sums, which in the aggregate amounted to $153.95. Plaintiff demanded judgment for said sum of $600, with the accrued interest, less the said sums credited, and interest thereon from the date of receipt of said sums until the date of judgment herein.

The defendants in their answer alleged that in addition to the sums received by the plaintiff as stated in the complaint, the plaintiff picked from said crop and received therefor other sums sufficient to pay the entire amount of principal and interest of said loan, together with an additional amount for which defendants demanded judgment in their favor. The court having rendered judgment in favor of the plaintiff in the sum of only $40.23, the plaintiff appeals from the judgment.

The judgment as entered is justified by the evidence unless the defendants are entitled to a certain credit, of $450, which was allowed by the court, but which, according to the contentions of the plaintiff, is not chargeable to it. It will be necessary to review the evidence concerning said item.

In the orchard there were about sixty-three rows of trees, numbered consecutively “from the bottom up.” The orchard was on sloping ground. Some time after December 10th the fruit on the lower part of the orchard, including about a dozen rows, was frozen. The upper part of the crop, although affected to some extent by frost, was not classed as frozen fruit. The plaintiff’s manager notified Mr. Eyan that part of the fruit was frozen, and by mutual consent of the parties, the plaintiff made sales of this fruit as frozen. This included only the oranges in the lower part of the grove. The purchasers were the two brothers Graffia. The plaintiff accounted to the defendant for certain receipts of money which it claims represent all of the boxes which it picked and sold to the Graffias. The credit of $450 allowed by the court is for other fruit taken from the upper part of the orchard, which the court found was also received by the Graffias, but which the plaintiff claims that it did not sell or deliver to them, and for which the plaintiff has refused to