Rhee v. L. K. Small Co.

CASHIN, J.

An appeal from a part of a judgment entered on a verdict in an action to recover for a breach of contract by an agent.

Appellant corporation, which was engaged in the business of packing and shipping produce, entered into a written contract with respondent by which the latter agreed to plant twenty acres of lettuce and deliver the crop to appellant to be packed and marketed. The growler further agreed to pay in addition to the cost of packing a commission of fifteen per cent of the amount of the gross sales of all lettuce delivered and accepted for shipment. It was further agreed that appellant should make certain advances as the crop was delivered, and it appears from the testimony that money was advanced and seed furnished before the crop was grown. The contract also contained the following provisions: “The grower hereby appoints the above named distributor (appellant) his exclusive selling agent for the selling and distributing of all lettuce owned and controlled by

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the grower for the season of 1922''*. . . ” and “The distributor agrees to use his best efforts' and endeavors in the marketing of said lettuce in order to procure the best possible returns ...”

The complaint alleged that there was received from the Southwestern Fruit Company a

tona fide

cash offer for the crop as it stood in the field, which the offerer was ready, willing, and able and promised to pay.

That plaintiff was willing to accept and demanded of defendant that it accept the price offered, but that the latter refused and neglected to do so, and the offer was withdrawn.

That by defendant’s failure to exercise reasonable care 'and diligence in marketing the crop plaintiff was damaged in the sum of $6,296.61.

These allegations were denied by defendant, which pleaded by way of counterclaim and cross-complaint causes of action arising out of two separate contracts for the delivery and sale of crops of cantaloupes under which it sought to recover the total sum of $3,429.33. The jury awarded to each party the amount claimed and the appeal is from that part of the judgment which was entered against the corporation. It appears from the testimony that the lettuce was grown as •agreed and within a few days before the time when ready for delivery an offer of $8,000 for the entire crop in the field was made by a certain Japanese who was doing business under the name of Southwestern Fruit Company. Respondent testified that he wished to accept the offer and so informed appellant’s agent, but that the latter refused to sell for less than $8,500, stating that the Japanese were not financially responsible. According to the testimony of the "agent, respondent, who was then indebted to appellant, stated at the" time the offer was made: “You know I am heavily indebteded to you people and I would like to get straightened out on this thing and at the same time it is a fair margin for you people to get your commissions . . . We are willing to pay just the same.”