Stella v. Smith

MR. JUSTICE Pro Tem. SHIELDS Delivered the Opinion of the Court.

On August 20, 1927, the plaintiff, doing business under the name of Nuestro Fruit Company, entered into a contract with the defendant Smith for the purchase of grapes. Their agreement was sought to be expressed by a brief writing, which provided that E. C. Smith, the defendant, agreed “to sell to the Nuestro Fruit Company, of Tuba City, Calif., all the tons of Zinfandel grapes, 1927 crop, at a price of $42.50 per ton; to deliver grapes at Alamendra Station on the Sacramento Northern Railway at his own cost; purchaser to furnish boxes in proper season; all grapes must pass Government sugar test for shipping, second crops Zinfandéis included”. Plaintiffs paid to the defendant $2,000, as an advance on the purchase price of the grapes. One carload of the grapes was delivered, and accepted and paid for by plaintiffs. Immediately thereafter a large quantity of grapes, about 1,000 lug boxes, were tendered by defendant in further performance of his contract. Plaintiffs refused to receive them, claiming that they were unfit for shipment, and that they did not satisfy the terms of the contract between the parties. Much correspondence followed between the parties which need not be particularly referred to herein. Defendant sold the grapes to other parties, and plaintiffs began this action to recover the $2,000 previously paid to the defendant, this sum having been

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intended to be applied to the payment for the grapes which plaintiffs refused to receive. By a previous telegram and letter the plaintiffs had notified, defendant that because of what they called his breach of the contract they regarded the contract at an end and they demanded of defendant the return of this $2,000 prepayment.

If plaintiffs were correct in their contention that defendant had breached his contract they were entitled to this remedy. “An action for money had and received, to recover money paid under a valid contract” can be maintained where it can be shown “that the defendant has been guilty of a breach thereof”. (17 Cal. Jur. 614.)

Plaintiffs’ complaint was in three counts, the first of which, while informal, was substantially for money had and received. The remaining two counts were based upon the contract, and recognized its existence. At the trial, however, plaintiffs abandoned their second and third causes of action and elected to proceed upon the cause of action first stated. At the trial plaintiffs proposed to show that the grapes as tendered did not comply with the requirements of the contract in that they were soft, mouldy and that mixed with them in the boxes were leaves, stems, greén grapes and litter, and that, as a consequence, they were unfit for shipment. To such evidence the defendant made much general objection.