Eastwood v. Golden State Produce Co.

California Court of Appeal Apr 23, 1931 No. Docket No. 7531.Published

Before: Ward

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Holding. The court held that the plaintiff substantially performed the contract and that the trial court's failure to make specific findings on an alleged oral modification was not reversible error because the evidence did not support the appellant's contention. The judgment was affirmed with a minor modification to reduce the recovery by $11 for unsupported charges regarding undersized plums.

Issues

Whether the plaintiff's failure to plead full performance was cured by the defendant setting forth the contract in the answer.
Whether the written contract was modified by an executed oral agreement.
Whether the trial court's failure to make specific findings on all issues constitutes reversible error.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“When any of the conditions are omitted in pleading the legal effect of a contract, the omission is cured if the opposing party sets forth the contract in full.”

“If there has been a substantial performance in good faith, the failure to make full performance may be compensated by deduction from the agreed price.”

“Appellate courts will not interfere if the trial court neglects to find upon an issue submitted by an appealing party, if such issue is not proved sufficiently to sustain a finding in favor of the party complaining”

WARD, J.,

pro tem.

Plaintiff entered into an agreement with defendant whereby plaintiff agreed to sell to defendant and defendant agreed to purchase from plaintiff two thousand (2,000) boxes of sugar plums growing and to be grown during the 1929 season upon land in the county of Santa Clara, state of California, known as the Eberhart Tanning lands; defendant agreed to pay plaintiff the sum of $1 per box f. o. b. ranch; plaintiff agreed to full pack in Los Angeles lugs; to deliver the plums free from dirt, insect bites or other blemishes, and to be of a grade fit for all market purposes; plaintiff delivered to defendant 1878 boxes of sugar plums grown and produced on the Eberhart Tanning lands. Plaintiff received $800 on account of the

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purchase price of 1878 boxes of sugar plums and brought this 'action for the alleged balance, $1078; defendant admits the facts stated above, except that defendant, prior to the commencement of this action, tendered $608.50, which sum the defendant claimed to be the reasonable market price for the plums; the defendant denies that the plums were free from dirt, insect bites and other blemishes, and of such a grade fit for A1 market prices, and alleges that the sugar plums were not of the quality and grade that plaintiff promised and agreed to deliver, in accordance with the contract, which was annexed to and made a part of the answer.

Appellant prosecutes this appeal on the following grounds: That plaintiff did not allege or prove full performance of his contract nor did he plead or prove excuse or prevention from full performance; that the terms of the original contract were modified by an executed oral agreement; that the court failed to make findings on material issues in the case, and that the judgment is not supported by the evidence.

It is true that the complaint recited the substance and purported legal effect of the agreement, but if it was necessary to determine the issues involved herein to consider the contract in its entirety, the court had that opportunity when the contract was introduced in evidence. It was made a part of defendant’s answer. When any of the conditions are omitted in pleading the legal effect of a contract, the omission is cured if the opposing party sets forth the contract in full. (See

Eastwood v. Golden State Produce Co.

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WARD, J.,

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