Morrell v. San Tomas Drying & Packing Co.

KERRIGAN, J.

This is an appeal from an order denying a new trial in an action for damages for the alleged failure of the defendant, San Tomas Drying and Packing Company, to accept and pay for a certain lot of prunes under the terms of a written contract between the parties to the action.

This case was before this court upon a former appeal, the decision of which is reported in 13 Cal. App. 305, [109 Pac. 632], and in which the facts of the case are quite fully and correctly set forth. Upon the retrial of the cause the errors of pleading and attempted proofs adverted to in that decision were in the main corrected or avoided by the plaintiffs; and, while the appellant still contends that the action was prematurely brought, the adverse views of this court upon the former

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appeal as to that issue must be adhered to as the law of the case.

As to the appellant’s contention that the rejected prunes did not meet in point of quality the requirements of the contract, and that for that reason they were entitled to reject them as a whole when offered as a whole, the evidence shows the following to be the facts: The prunes were grown upon several orchards owned or leased by the plaintiffs in the vicinity of Wright’s station in the Santa Cruz Mountains during the season of 1907. The contract for the purchase by the defendant of the crop when dried by the plaintiffs was entered into in the month of July of that year while the prunes were still upon the trees. Such contract requires “All fruit to be sound and merchantable and well dried, free from slab, of choice quality, and delivered f. o. b. packing house situated on the Infirmary road; Santa Clara county, California; delivery to be made as directed, final delivery before November 30, 1907.” The total amount of prunes grown was, when dried, 172,698 pounds, and of this amount 134,132 pounds were delivered to and accepted by the defendant within the time fixed by the contract. The reason the remainder of the crop, amounting to 38,566 pounds, was not also offered for acceptance during said time was, as testified by the plaintiffs, that the defendant requested that such further delivery be delayed for the reason that its bins were full. In accordance with this request the time for shipment and receipt of the remainder of the prunes was extended until January 1, 1908, when a further extension was requested by the defendant, but before granting it the plaintiffs insisted that the defendant’s manager should inspect this remainder of the prunes upon plaintiffs’ premises in order, apparently, that they might be assured that the prunes would be accepted when finally delivered. The defendant’s manager accordingly went during December, 1907, to the plaintiffs’ premises, and there fully examined the undelivered fruit, and, after doing so, said that the prunes were all right with the exception of one separate pile of about a ton, which contained a few soft prunes; and he then stated that if the soft ones were in condition when he received the balance of them he would accept them also. On January 14, 1908, the defendant requested that the time limit of plaintiffs’ delivery under the contract be further extended to May 1, 1908, for the reason evidently that its bins were