Randolph Marketing Co. v. Wood

CURTIS, J.

Action to recover damages for breach of contract in the sale of four carloads of Zinfandel grapes.

[99]

The grapes were purchased by the plaintiff from the defendant Wood through defendant Ely as a broker acting for Wood. The purchase price was forty-five dollars per ton, which was paid at the time the cars were loaded by Wood at stations near Modesto, in Stanislaus County. Two ears were consigned to Walla Walla, Washington; one to Portland, Oregon, and one to El Paso, Texas. On the arrival of the grapes at their respective destinations the four ears were found not to contain Zinfandel grapes only, but each car contained a mixed variety of grapes, principally Tokay, Mission, and Zinfandel varieties. The consignees refused to accept the grapes, for the reason that they contained varieties other than Zinfandel. There was no evidence of the amount of each variety of grapes shipped in any one car, nor was there any evidence of the amount of each variety of grapes shipped as a whole in the four cars. The only evidence of the value of the grapes shipped was that given by the defendant Ely. He stated that Mission grapes were worth five dollars per ton more than Zinfandel and that other varieties were worth from five to fifteen dollars per ton less than Zinfandels, but that it would be impossible to say what a mixed car, that is, a car containing a number of varieties of grapes, was worth, without knowing what percentage of the different varieties were in the car. In answer to a question as to what he would give for such a car of grapes, the witness testified, “Probably thirty dollars a ton, maybe more. I would have sized it up. If I thought it contained sixty or seventy per cent of Missions in there, I would have probably given the full price for it.” At the close of plaintiff’s testimony, upon the motion of defendants, the court granted a nonsuit. This motion was granted on the ground that there was no evidence of any damage having been sustained on behalf of plaintiff, for the reason that the evidence failed to show the value of the grapes shipped, or that the grapes actually shipped were of any less value than the grapes ordered and paid for by plaintiff.

We are not favored with any brief or points and authorities on behalf of respondents. Appellant contended that the evidence shows that the grapes as loaded in the cars at the points of shipment were worth only thirty dollars per ton, and that as it paid forty-five dollars per ton for the grapes, its damage would be the difference between