California Packing Corp. v. Kandarian

[730]

St. SURE, J.

This is an action to reform a contract and to recover damages for breach thereof as reformed. The plaintiff obtained judgment against the defendant reforming the contract and giving it judgment against defendant for damages in the sum of one thousand dollars and costs of suit. Defendant appeals from the judgment.

The contract is one for the sale to plaintiff by defendant of twenty-five tons of Muscat raisins at nine cents per pound, said raisins grown by defendant on land owned by him during the year 1919, and to be delivered before December 1, 1919. The contract omitted to describe the land from which the raisins were to come, and it is in this particular that plaintiff sought reformation, alleging that the description was omitted through mutual mistake.

The contract was made upon a printed form known among packers as a “dried fruit contract.’’ It was dated and filled out by W. D. Weaver, a buyer for plaintiff, and signed by him on behalf of plaintiff. Defendant admitted that he knew Weaver and had theretofore had business transactions with him relating to the sale of raisins. He also admitted that he had met and conversed with Weaver about the time it is alleged the contract was made, but he denied that he had ever seen the contract in question, or that the signature “M. ” Kandarian, subscribed thereto, was his. He said that the signature resembled his “a little, very little, not all.” Defendant’s real name is “A.” Kandarian, and his wife’s “Mary” or “M.” Kandarian. She cannot write. Witness Weaver told of the meeting between himself and the defendant at the time the contract was made. He testified in part as follows: “He [Kandarian] asked me what I was doing. I said still buying raisins and he says I will sell you twenty-five ton; he asked me the price and I told him nine cents and he says I will sell you twenty-five ton, so I says all right and I just pulled out my contract book and started in making the contract, A. Kandarian, and he says no, make it M. Kandarian so I proceed to write it accordingly.” Weaver testified positively that the defendant signed the contract “M. Kandarian” in his presence. Judge Woolley was a witness for plaintiff. Reference is made to his appearance at the trial and his testimony is summed up as follows by counsel for defendant in his 'brief: “J. E. Woolley, one of the Superior Court judges of Fresno County, formerly in the employ of Short and