Eskew v. California Fruit Exchange

RICHARDS, J.

This action was instituted by the plaintiff, a copartnership, against the defendant corporation to recover damages for the alleged failure of the defendant to deliver to the plaintiff certain Zinfandel grapes during the season of 1924, pursuant to a contract in writing between the aforesaid parties so to do, which contract was in the words and figures as follows:

“Fresno, Calif., August 22nd, 1924.

“California Fruit Exchange, Seller, has sold and E. H. Eskew & Son, Buyers, have bought 5 cars Zinfandel grapes at $77.50 per ton, unlidded L. A. lugs, f. o. b. cars at Minkler, Calif., loaded in refrigerator cars. Shipping dates: Beginning Sept. 15, 1924, one car every other day till order is filled.

“Terms of payment: $1000.00 to be paid by Buyer on signing of this contract, receipt of which is hereby acknowledged, to be applied on payment as cars are loaded at the rate of $200.00 per car. Balance for each car to be paid when car is loaded.

“Said grapes to meet requirements of U. S. Grade No. 1.

“It is understood that this sale is contingent upon climatic conditions, fire, failure of transportation service, strikes or other casualties over which seller has no control and seller is hereby released from all liability hereunder in event of failure to ship said fruit on account of said casualties save

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and except to return any part of advance payment which has not been applied on payment for cars shipped.

“E. H. Eskew & Son,

“By E. H. Eskew.

“California Fruit Exchange,

“By L. G. Haight, Hist. Mgr.”

Pursuant to such contract the defendant delivered to the plaintiff at Hinkler, in the county of Fresno, on September 15, 1924, one car of the variety and quality of the grapes required by the terms of said contract. A day or two later the defendant loaded two cars of grapes and these failed to pass the United States inspector as being U. S. Grade No. 1, as required in the contract, and plaintiff therefore refused to accept these two latter shipments of grapes; whereupon the defendant notified the plaintiff that owing to weather conditions existing just prior to that time in the Hinkler district no more grapes which would grade U. S. No. 1 would be shipped. Upon the execution of said contract the plaintiff had advanced to the defendant the sum of $1,000 as required by the terms thereof, and which sum was to be applied as payment on such grapes as were accepted at the rate of $200 per car. After some conferences and correspondence between the parties, in the course of which the plaintiff urged the defendant to procure the grapes elsewhere if it was unable to supply them from the Hinkler district, the defendant, on or about September 30, 1924, notified the plaintiff that it would not be in a position to fulfill its contract, and undertook to return to the plaintiff the sum of $800, the check for which, however, the plaintiff refused to accept as in full of the defendant’s obligation, and accordingly returned the same to the defendant. Thereupon the plaintiff instituted the present action, setting forth in its complaint substantially the foregoing facts, and seeking damages in the sum of $3,173.12^ arising from the breach of said contract, and also seeking to recover the $800, balance of the plaintiff’s advancement thereon. The defendant, in its answer, undertook to plead that in entering into said contract it was acting as the agent for other persons in the sale of carloads of grapes, and that its principals were disclosed and known to plaintiff at the time of malting the contract. The defendant further pleaded that the contract referred to grapes to be grown in the Hinkler