Crisafulli Bros. v. Cucamonga Vintage Co.

,CRAIG, J.

Plaintiff's assignor, G. Crisafulli, and the Cucamonga Vintage Company, entered into contract in writing, dated November 7, 1918. Under this agreement G. Crisafulli became entitled to commissions amounting to $1,-950.06. These sums were earned through his services rendered as a broker in procuring for the defendant two contract's to purchase wine referred to as the Mariani Bros, and Bellanea & Co. contracts and which were dated October 31 and November 7, 1918', respectively. The contract between G. Crisafulli and the defendant was executed just after the other contracts mentioned and stipulated that the broker should receive a commission of two cents per gallon for one sale and three cents per gallon for the other.

[537]

On November 21, 1918, Crisafulli, acting as agent and broker for Joe Finelli and one E. Penna, executed contracts for each of these parties by which they agreed to buy Cicilian wine from the company. The contracts contained this provision: “The buyer agrees to pay Ten Dollars ($10) per barrel within five days from this date, balance to be paid by sight draft attached to Bill of Lading. ’ ’ Under these two contracts the defendant was entitled to receive $3,000 on or before November 26, 1918. Neither Penna nor Finelli ever made any payment to the defendant but the trial court found that Crisafulli directed the application of his commissions earned under the Mariani Bros, and Bellanea & Co. contracts to payment upon the $3,000 due defendant under the Finch and Penna contracts; and that in this way the plaintiff’s claim had been paid.

Appellant contends that the evidence is insufficient to support this finding. It is true that the testimony is conflicting, but we think that it justifies the construction placed upon it by the superior court. Three witnesses testified that Crisafulli authorized the president of the defendant company to make the application of the commissions which he sues to collect upon the $3,000 owing the company. Referring to a conversation in January, 1919, the witness Thomas, president of the Cucamonga Vintage Company, testified that Crisafulli said “to apply these commissions against these contracts” and further, “and we made some annotations that we were doing that, at the time.” Another witness gave his recollection of the same conversation. This was H. I. DeBerard, the vice-president of the Cucamonga Vintage Company, and who also acted as bookkeeper. He testified that Crisafulli said, “That is all right, you have your commission applied on those contracts, and that is sufficient funds, and it will be all right,” he said, “I’ll fix the cars in case they don’t take them. Q. He agreed to stand behind them in the event they didn’t take them? A. Ves. Q. Then it wasn’t at this conversation that Mr. Crisafulli first said to apply it: it had already been said by Mr. Crisafulli before this and also in your presence? A. Yes, sir. Q. You knew all about understanding that this sum was to be applied, this commission was to be applied on those contracts, didn’t you? A. Yes, sir.”