Glantz v. Freedman

FINCH, P. J.

The plaintiff as principal and the defendant as agent entered into a contract for the sale of the former’s grapes by the latter. The contract contains the following:

“It is therefore agreed that the said principal hereby appoints the said agent as his sole and exclusive agent for selling said grapes f. o. b. cars shipping point for the account of principal, unless written instructions are delivered to the said agent to consign same, and agrees to pay said agent the sum of 20 cents per lug or packed crate as his entire compensation for furnishing lugs, receiving, loading and for sale of said grapes. Boxes to be furnished by agent at Lodi, California, and principal agrees to pick and deliver grapes to agent at packing house or railroad cars, in compliance with federal, state and county rules.”

At the time of the transactions between the parties, the defendant was engaged in the fruit business at Modesto, Lodi and other places. He maintained an office at Modesto, but not at Lodi. His “representatives or agents” at Lodi were Fred Wall and John Wittmayer. Wittmayer executed the contract in question as the defendant’s agent. When the contract was presented by Wittmayer to the plaintiff for execution, the latter refused to sign it. Wittmayer thereupon wrote the defendant, asking for an interpretation of the form of contract used. The defendant’s bookkeeper wrote Wittmayer in reply that “if immediate sale is not effected we will take the stuff on ourselves at the market price and pay on that basis,” This letter was signed,

[613]

“Chas. Freedman, per 0. J. J.,” the bookkeeper’s name being 0. J. Jennings. Wittmayer showed the letter to the plaintiff and he thereupon signed the contract. Respondent contends that the letter is a part of the contract between the parties. It is deemed unnecessary to decide this question, there being other sufficient grounds upon which to affirm the judgment. The complaint alleges:

“That Avithin íavo years last past plaintiff sold and delivered to defendant at defendant’s instance and request, 1467,boxes of Tokay grapes at an agreed purchase price or value of the sum of $1,834.40. That no part of said sum has been paid by defendant, to plaintiff except the sum of $829.46. . . . That the said price . . . was the reasonable value thereof, and the market value thereof at the dates when the same were sold and delivered.”