Rosenberg v. Rogers

BURNETT, J.

The appeal is from the judgment in favor of defendant. The case was here before and the judgment in favor of defendant was reversed. (44 Cal. App. 196, [186 Pac. 366].) The action was to recover damages for the failure of defendant to deliver a portion of her .crop of figs to plaintiffs and was based upon a written contract executed by the parties on January 29, 1918. The terms of that contract, as far as applicable to the controversy herein, are set out and construed in said decision of this court, and the discussion needs no repetition. However, we may quote from that decision the following statement: ‘‘ The cause was tried by the court upon the theory that defendant was under no obligation to deliver any figs that did not measure up to the standard fixed by the contract, and specifically was under no obligation to tender any figs that were of poor quality, off color, dark and defective and not in good merchantable condition.” This court held that such theory was entirely contrary to the express provision of the contract, and for that reason reversed the cause. Upon the second trial respondent relied upon the defense that she was released from any obligation to deliver or to tender the damaged figs by reason of the fact that appellants notified her that they would not accept said figs. There is evidence in the record to support her contention as to said notification and, although controverted, it presented a question for the determination of the jury. No reason has been suggested why it was not competent for appellants to thus relieve respondent from any obligation to deliver or tender said damaged fruit. In other words, the consideration involves a question of fact and not of law. It is true that, at the request of plaintiffs, the court gave this instruction to the jury: “Under the terms of said contract the only condition by which defendant could be released from her

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obligation to deliver to plaintiffs said figs was the destruction thereof by frost, or other similar unavoidable casualty.” This must be read, however, in connection with the following, given at the request of defendant: “Defendant admits that she did not deliver all the figs raised on her place in the year 1918 and contends that she offered to deliver to plaintiffs all the figs raised on her place, but plaintiffs refused to accept the ones in question; if, from the evidence you find this to have been the ease, you will find for the defendant.”