Seaton v. Garcia & Maggini Co.

LANGDON, J.

This is an appeal by the defendant from a judgment against it for $4,845.98, damages for breach.of contract. The plaintiff was the owner of an apple orchard in Sonoma County, California, and entered into a contract with the defendant by which the defendant agreed to purchase and the plaintiff to pick and deliver “all the Graven-stein Apples, below specified and grown during the current year on his (seller’s) ranch.” The seller agreed to haul the apples from the plowed ground of the orchard and place them in a convenient place to be loaded on autotrucks and to assist the drivers of said trucks in loading the same. It was also agreed that said apples were to be weighed at the packing-house of the buyer at Sebastopol, California, and that the buyer would furnish the necessary lug boxes for harvesting the crop. The contract also contained the following provision: “It is understood that the price paid for

[188]

these apples is sixty dollars per ton and is for fruit two inches in diameter and larger and is free from worms and any diseased imperfections which would cause same to be unfit for packing and drying.”

The complaint alleged that plaintiff had delivered to defendant 303,178 pounds of apples of the kind described in the contract, upon which there was a balance still due of $1,450.74; and as a second cause of action it was alleged that the defendant had failed and refused during the harvesting season, though repeated demands were made upon it to furnish lug boxes in sufficient quantity to harvest said crop of apples sold by plaintiff to defendant; that by reason of the failure of defendant to furnish a sufficient quantity of lug boxes or any boxes to harvest said crop of apples, many of the apples raised by . the plaintiff and by the plaintiff sold under said contract to defendant fell from the trees on the plaintiff’s ranch to the ground, and became unfit and unsuited for delivery by plaintiff to the defendant under said contract. It is also alleged that for the purpose of minimizing the damage to the defendant by reason of such failure of defendant to furnish boxes for harvesting of said apples, this plaintiff gathered said apples and sold them at the best price obtainable in the vicinity in which said apples were grown. It is alleged that by reason of the failure of the defendant to furnish said boxes, and the consequent necessity of • a sale by plaintiff of the fallen apples (83⅓ tons) at a price of $6 per ton, the plaintiff has been damaged. It is also alleged that by reason of the failure of defendant to furnish the lug boxes in accordance with its contract, plaintiff was unable to harvest and sell for any purpose or any price 120 tons of apples of the kind and character described in the contract, resulting in additional damage to plaintiff in the sum of $7,200. Judgment was prayed for a total of over $13,000.