Peterkin v. Randolph Marketing Co.

SHAW, J.

In this action a judgment was entered upon the verdict of a jury for $1,740.60 in favor of plaintiff, from which defendant appeals.

Plaintiff sues for himself and as assignee of one Whiting, both of whom were owners of orange groves upon which, in the fall of 1917, there were crops of fruit ready for market. Defendant was a corporation engaged in the marketing of such fruit. The claims of plaintiff and his assignor, as appears from the complaint, are that they delivered their fruit to defendant for shipment upon an agreement by the latter whereby it guaranteed a price, f. o. b. at Anaheim, of a certain stipulated sum per packed 'box of oranges, less a certain sum for picking, packing and commission to be received by defendant; while, on the other hand, defendant asserted the fruit was consigned to it for marketing on a commission basis, without purchase or guaranty as to price at which it was to be sold.

The record is presented in a typewritten transcript, and counsel for both parties, recognizing the rule prescribed by section 953c of the Code of Civil Procedure, have printed in their briefs that portion of the record upon which they rely to sustain their respective contentions.

It appears that defendant’s principal place of business was in the city of Los Angeles; that it had a house in Orange County where it received and packed fruit for shipment; that J. C. Gow, who was a soliciting agent, called upon plaintiff and Whiting and solicited the handling and sale of their fruit crop by defendant on commission; as to all of which there is no controversy in the evidence. A

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conflict, however, arises as to the nature of the oral agreement under which the fruit was delivered to defendant. The testimony of both plaintiff and his assignor tends to prove that Gow came to them with a proposal to ship on consignment, which they declined; that thereafter, in an interview with Gow, he agreed to guarantee plaintiff a stipulated price for the fruit, out of which defendant was to receive sixty-five cents per box for picking, packing, and marketing. And like testimony was given by Whiting as to the agreement made with Gow. Plaintiff testified as follows: “It is my theory that I sold the fruit to the Randolph Marketing Company”; and, further, “I considered it a purchase; if the fruit brought more than the price agreed upon, I was to have the excess. ... It was understood that the fruit was subject to inspection at the other end. ... If the fruit had been rejected on inspection, it would have reduced my claim.”