Bishop v. Descalzi

CONREY, P. J.

Action by plaintiff to recover the sum of $590, balance due on a contract for oranges sold and delivered; also to recover the further sum of one thousand one hundred dollars damages for breach of the same contract by refusal of defendants to receive a part of the oranges sold and to pay for same. Judgment in favor of plaintiff on both demands, from which judgment defendants appeal.

The terms of the contract were as follows:

“Lindsay, California, October 21, 1916.

“This is to certify that the Descalzi Fruit Company of Pittsburg, have bought of D. 0. Bishop his entire crop of Washington Navel oranges at 2 cts. per lb. delivered at the packing house, said crop to be merchantable fruit, free from splits and to conform to the government test of 8-1. $500.00 to be advanced, balance payable as cars are loaded.”

Appellants claim: 1. That the evidence is insufficient to sustain that portion of the findings which found the oranges in question to be “merchantable fruit, free from splits and to conform to the government test of 8 to 1.” 2. That the evidence is insufficient to sustain the last paragraph of finding X, which is as follows: “That on or about the twenty-seventh day of November, 1916, the defendants, through their agent, inspected said plaintiff’s crop of Washington Navels mentioned in said contract of October 21, 1916, and accepted all the oranges in the lower ten acres of said grove consisting of about one.hundred nine thousand, five hundred pounds (109,500) as complying with said contract of October 21, 1916, and instructed plaintiff to pick and deliver the same to defendants at the packing-house in Lindsay; that

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immediately thereafter plaintiff commenced to pick said crop on said lower ten acres, and deliver it to the said defendants at said packing-house in Lindsay, and continued to so pick and deliver until on or about the fourth day of December, 1916, by which time plaintiff had picked and delivered fifty-four thousand five hundred (54,500) pounds of said oranges when said plaintiff was stopped and delayed in said picking and delivery by the acts of said defendants and thereafter on the sixth day of December, 1916, said defendants notified said plaintiff that defendants refused to accept any more of said crop of oranges or to pay for the same, and demanded of plaintiff that plaintiff return sfcid five hundred ($500) dollars so advanced to him, and that thereafter on the morning of the eighth day of December, 1916, and before defendants had retracted said notice of refusal to accept said oranges and before said plaintiff could, with reasonable diligence have effected a resale thereof said fifty-five thousand (55,000) pounds of said crop of oranges still remaining on the trees unpicked were destroyed by frost without any fault on the part of the plaintiff.”