Alciatti v. Origlia

WASTE, P. J.

The plaintiffs brought this action to recover for the alleged breach of a contract to sell a quantity of wine and for the commission claimed to be due for the sale of the same. They recovered a general judgment, based upon both counts, and the defendant appeals.

The defendant, a wine grower, signed and delivered to U. Grossini a paper reading as follows:

“Morgan Hill, Cal., Dee. 2nd, 1918, I have this day agree to allow U. Grossini, wine broker, to sell my wine of about 35,000 gallons of red wine, for the price of 50 cents per gallon F. O. B. station Morgan Hill, Cal. this option to run 10 day from date; also white wine of about 4000 gallons,

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commission.

“(Signed) Antonia Oeiglia.”

At the same time she gave. Grossini samples of the wine, which he submitted to several parties including the plaintiffs. The samples were satisfactory and the plaintiffs prepared a form of contract, in duplicate, for the defendant to sign, which they gave to Grossini together with a cheek for $1000, payable to Mrs. Origlia, as a deposit on the purchase price. The agreement, as prepared by the plaintiffs, specified that the defendant agreed to and did sell to plaintiffs thirty-two to thirty-three thousand gallons of red wine, and three thousand eight hundred gallons of white wine, as per “samples furnished by A. Grossini, Broker, and the price is fixed at 50c a gallon F. O. B. Morgan Hill, Calif.,” the plaintiffs agreeing “to pay for the wine bought, as soon as same is delivered,” deducting from the total the deposit of $1000, and to accomplish the withdrawal of the wine from the defendant’s winery not later than the middle of March next succeeding.

Grossini did not enter into any contract on the part of his principal, or in her name. He told the plaintiffs that it was “necessary to get her signature,” and sent the proposed agreement, and check for the deposit, to the defendant by mail, with a letter in which he stated that he hoped that it “will be satisfactory.” She returned them to him four or

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five days later, with a letter in which she stated that while she was willing to sell at the price stated, it was not convenient for her to keep the wine until March and insure it until that time; that she needed money and desired the purchaser to pay for the wine at once. She accordingly refused to execute the contract. A representative of the plaintiffs and Grossini visited the defendant, and attempted to come to some agreement with her for the purchase of the wine upon terms which would be satisfactory. The defendant demanded cash in advance upon making the sale, and refused to sell upon any other terms. The plaintiffs, after demanding that the defendant fulfill an alleged sale to them, took an assignment from Grossini of his claim for commissions for making the sale, and brought this action with the result already noted.'