Pann v. Barry

[128]

SPENCE, J.

Plaintiff brought this action to recover damages for the alleged breach of contract by defendants. Defendants cross-complained seeking damages for the alleged breach of the said contract by plaintiff. From a judgment in favor of defendants and cross-complainants, plaintiff and cross-defendant appeals.

The contract which was executed by the parties under date of December 3, 1926, read as follows:

“In consideration of an advance of Four Thousand ($4000.) Dollars, receipt of which is hereby acknowledged, A. Belle Barry and E. D. Barry, of Pasadena, California, places the marketing of her entire crop of oranges on their ninety acres, situated eighty acres on the southeast corner of Workman avenue and Lark Ellen blvd., and ten acres on Arroyo drive, near Puente blvd., West Covina, California, in the hands of the Angeles Brokerage Company to market for their account, and agrees to pay 75$ per packed box for packing, and 15$ per packed box for selling.

“If the picking and hauling is done by the Angeles Brokerage Company, they will charge cost and same to be at the expense of the grower.

“It is understood that all of the fruit will be sold on a cash California basis, unless otherwise mutually agreed at time of shipment.

“The Angeles Brokerage Company agrees to render returns on each shipment as soon as sold.”

Under this agreement plaintiff packed and sold twelve carloads of respondents’ fruit containing 5,004 boxes. Thereafter defendants, claiming the right to rescind and terminate the agreement, served upon plaintiff a notice of rescission and refused to permit plaintiff to proceed. In his complaint plaintiff alleged performance on his part and breach of the agreement by defendants. He sought to recover certain sums alleged to have been paid out on behalf of defendants in addition to his alleged loss of profits on the packing and sale of the remaining fruit. In the answer and cross-complaint defendants denied any breach on their part, alleged that they had rescinded the agreement because of fraud and failure of consideration based upon plaintiff’s breach of the agreement and sought damages by reason of plaintiff’s alleged breach. The trial court found among other things