Iwata v. Goldberg

CONREY, P. J.

This is an action to recover money claimed under a written contract for shipment of cantaloupes by plaintiffs to defendants. The demand of plaintiffs is for the sum of $2,999, balance claimed to be due in accordance with the contract, the purport of which plaintiffs attempted to state in their complaint, and therein described the contract as a contract of sale. The defendants included in their answer a complete copy of said contract. Defendants admitted their liability to the extent of $232.41 and no more, which admitted sum was duly tendered to the plaintiffs. After trial of the action the court made its findings of fact and awarded judgment for said sum of $232.41. The plaintiffs have appealed from the judgment.

The contract between the parties reads as follows:

‘ ‘ This agreement made by and between K. C. Iwata & Co., of Brawley, California, hereinafter referred to as the consignor and Goldberg Bros, of Youngstown, Ohio, hereinafter referred to as the consignee, witnesseth:

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“That for and in consideration of three thousand seven hundred and fifty dollars ($3750.00) to he paid by consignee to the consignor immediately upon signing of this contract the consignor will ship to the "consignee at his place of business fifty (50) cars cantaloupes to be grown in Brawley District, Imperial Valley, California; said shipment to be made regularly during the shipping season of 1922 at the rate of one or two ears daily commencing on or about June 1, 1922.

“The consignor assumes the obligation of routing and regulation of shipments to conform to the time of maturity of the cantaloupes which must be in merchantable condition and suitable for shipment to Eastern markets, and labeled ‘Serenity’ Brand.

“The consignee agrees to accept and dispose of for the account of the consignor, all cars to be shipped in accordance with the above terms and to use his best efforts to obtain the highest price obtainable at the time of arrival at destination.

“Consignee agrees to render detailed and accurate account of sale immediately after each ear shall have been sold and such account sale shall be accompanied by cheek in full less amount advanced on account of price guaranteed also less all freight, demurrage, icing charges, etc., also less commission of ten (10%) per cent of the amount of the gross sale. Remittances as above to be mailed forthwith to the consignor at his Brawley, California, office. All records relating to transactions under this contract in possession of or that come into possession of the consignee, shall be and shall remain open for inspection by the consignor or his appointed representative. Consignee agrees to wire at his own expense to the consignor the gross sale of each car as sold.