Pann v. Fay Fruit Co.

THOMPSON (IRA F.), J.

This is an appeal from a judgment in favor of the plaintiff in the sum of $1562.30,

[728]

and representing the full purchase price of a carload of oranges purchased of defendant at Santa Ana, California. The material facts are as follows: On December 4, 1922, a representative of appellant called respondent on the telephone and asked him if he had any orders; quoted respondent two cars of navels, one for shipment that day and one on the following day. Respondent inquired concerning the quality and particularly concerning the color. The fruit was represented to be of “good color and good full pack”. Respondent replied that he would wire the car out and confirm the following day, which he did, receiving in return bill of lading and manifest. Respondent also informed appellant’s representative that he was relying upon his representations entirely as to the quality. Respondent paid appellant the sum of $1562.30 for the oranges. On the arrival of the car at Youngstown, Ohio, it was found, according to the testimony of at least one witness, that the “color was dead green and couldn’t even be identified as oranges”; that “they were worthless”, although there was a “good market” and “heavy demand” for California oranges. According to the chief food inspector of Youngstown he found the “shipment of oranges to be too green to be marketable” and estimated their condition as follows: “yellow—8% ; 10—25% green—30%; light green 27%; to % green 20%; more than % green 15% ”. When this condition of the fruit was reported to respondent he advised appellant and demanded that it receive the oranges back, which demand it refused, whereupon he diverted the car to New York and sold these oranges which had been robbed of sufficient California sunshine, at public auction, realizing therefrom the sum of $41.80 in excess of the freight, or a total of $752.40. It was alleged in the complaint and not denied that respondent was engaged in the business of buying fruit in California and shipping it to purchasers in the east, all of which was known to appellant. Further, the respondent testified that “very likely” he told appellant’s representative where the car was going and the latter testified that he thought respondent told him “he was purchasing for an eastern purchaser”. It should be observed, of course, that we have recited the testimony supporting the respondent’s cause of action and not the testimony adduced by appellant in conflict therewith.