Miller v. Hunt, Hatch & Co.

CONREY, P. J.

Action to recover an unpaid balance alleged to be due on the sale by plaintiff to the defendant of a crop of oranges. Judgment in favor of the plaintiff, from which the defendant appeals.

[1]

In á written agreement, of date April 20, 1916, it was stated that the plaintiff “has this day sold” to the defendant his entire crop of oranges, now on the trees growing on his ranch at Lindsay, California, at a stated price per hundredweight. “All fruit is to be weighed at the Hunt, Hatch & Company’s packing house and paid for upon the delivery of duplicate weight receipts at their office at the said packing house at Lindsay. Hunt, Hatch & Company are to furnish all boxes to put the said fruit in and agree to pick and haul the said fruit free of all costs to the said S. T. Miller. Fruit is to be of merchantable quality and picked at the option of the said Hunt, Hatch

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Company, provided same is removed on or before December 25, 1916.” The court found that on the thirteenth day of December, 1916, there remained in plaintiff’s orchard 380 trees which were unpicked; the amount of unpicked oranges thereon being 85,000 pounds. Finding V reads as' follows: “That on November 16, 1916, some of said oranges were injured by frost but at least 80 per cent of said oranges were from November 16, 1916, to December 13, 1916, uninjured and were ripe, in good condition, ready for harvest, and merchantable ; that between said November 16, 1916, and December 13, 1916, defendant had sufficient time to pick and

[770]

haul said ripe and merchantable oranges and could and should have done so; but defendant failed and neglected to pick or haul or pay plaintiff for said merchantable portion of said fruit within said time or at all; that said merchantable oranges were readily and easily separable from the injured oranges; that on the night of December 13, 1916, said merchantable oranges were injured by frost and later about January 6, 1917, were totally destroyed by frost and the amount of merchantable fruit which the defendant so left on said trees unpicked and unharvested in a ripened and merchantable condition and quality which defendant should and could have picked in such merchantable condition was 68,400 pounds.” Finding YII is as follows: “That from Nov. 16 to the 13th day of December, 1916, all of said 68,400 pounds of fruit above mentioned cáme up to the test of an ordinance of the Board of Supervisors of the County of Tulare, mentioned in the Answer of defendant, and none of said 68,400 pounds had been frozen prior to December 13, 1916, to such an extent as to render the same wholly unfit or unfit at all for consumption or merchantable.”