Ontario Deciduous Fruit Growers' Ass'n v. Cutting Fruit Packing Co.

GRAY, C.

This action was brought to recover the price of certain peaches sold and delivered under a contract in writing. The defendant set up as a defense non-compliance of plaintiff with the contract, and. also a counterclaim on account of damages arising out. of such non-compliancé. The plaintiff had judgment, from which and from an order denying a new trial the defendant appeals.

The contract between the parties contains the following stipulations: “Seller has this d¡ay sold and agrees to deliver to buyer, f. o. b. cars at South Cucamonga, and buyer has bought and agrees to receive from seller, the peaches, to the extent named, grown during the year 1898 on the orchard or land known and described as follows: sundry orchards in

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Ontario and Cucamonga, at the prices and on the terms and conditions named.” Then follow the terms, showing the grades and varieties of peaches sold, ihe minimum and maximum quantities of each, and the price per ton, and then the contract proceeds as follows: “ Deliveries shall be made between the twentieth day of July and the first day of September, 1898, and shall, conform as far as possible to the mutual convenience of buyer and seller.” Then follows a description of the fruit as to quality and size, and after that we quote again, “ Payments shall be made as follows: One half the delivery value within ten days of the daté of full delivery, and one half (the balance) of delivery value within thirty days of the date of final delivery, or the execution of all the terms of this contract by the seller.” The contract is signed by the corporation plaintiff as the “ seller,” and the defendant corporation as the “ buyer.”

At the trial, it was shown by oral evidence, against the objection and exception of defendant, that the “sundry orchards” spoken of in the written contract referred to and was confined to orchards belonging to the stockholders of plaintiff.

It appears that the fruit crop in the districts mentioned in the contract promised well at the date of the making of said contract, and that in an ordinary year the orchards referred to therein would halve produced sufficient fruit to carry out the contract, but before it was fully grown the season turned unusually dry and hot, and hot winds impaired the quantity and quality of the fruit to .such an extent that it was impossible for plaintiff to furnish, from the orchards of its stockholders in the said districts mentioned in the contract, a quantity of fruit equal to one half of' the minimum amount agreed to be furnished. Plaintiff did, however, furnish to defendant, and defendant received, such fruit as was grown on said orchards of the varieties and qualities described in the contract. When it was apparent that the varieties named in the contract could not be obtained from said orchards to the extent agreed upon, the defendant offered to accept “Salway” peaches in satisfaction of the contract, but the plaintiff failed to comply with this offer. “Salway” peaches were not mentioned in the contract.