Bill v. Fuller

SHAW, J.

This was an action to recover the balance of the purchase price alleged to be due for a crop of oranges sold and delivered by the plaintiff to the defendant. The defendant appeals from an order denying his motion for a new trial, and from an order denying his motion, made under section

663 of

the Code of Civil Procedure, to set aside the judgment entered, and to enter another and different judgment upon the findings.

The plaintiff was an orange-grower in the county of San Bernardino, and the defendant was engaged in the business of buying, selling, packing, and shipping fruit. Fuller inspected the plaintiff’s orchards and immediately afterwards they made the following agreement: ‘‘ This agreement, made this 19th day of November, 1900, by and between W. T. Bill

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and Henry Fuller, witnesseth: That said Henry Fuller has this day bought all the oranges grown this year by W. T. Bill in West Redlands and Bryn Mawr, except the St. Michaels, at two cents per pound (except the Australian navels on the five acres known as the Mabry Ranch, for which said Fuller agrees to pay one cent per pound), and said W. T. Bill hereby sells to H. Fuller at said prices. All oranges to be taken by H. Fuller on or before April 1st, 1901, except the late Valencias, and paid for in cash as soon and at the time of delivery. And W. T. Bill agrees to deliver at Bryn Mawr Station when wanted by H. Fuller. ’ ’ The court found that in pursuance of this agreement plaintiff delivered 160,256 pounds of oranges at two cents per pound, and 5,197 pounds at one cent per pound; that the defendant rejected 60,888 pounds of the two-cent oranges, and 2,492 pounds of the one-cent oranges, and refused to pay for those so rejected; that at the contract price the rejected oranges would amount to $1,243.26, and for this amount judgment was given in favor of the plaintiff. The principal contention arises upon the construction of the contract. '

The defendant claims that there was an implied warranty of the merchantable quality of the fruit at the time of delivery, and that under the last clause of the agreement he had the right arbitrarily to fix the time of delivery without regard to the condition of the oranges or the effect of delay upon them. In this we think the defendant was mistaken. At the time the contract was made the oranges were practically full grown, but not yet ripe enough for the market. The testimony shows, and the court found, that the oranges became ripe and ready for market in January of the year. 1901; that the plaintiff at various times from that time forward until the 12th of March informed the defendant that they were ripe and ready for picking and shipment, and that delay would injure them, but the defendant each time refused to receive them until March 12th, and that at that time he told the plaintiff to deliver the oranges as fast as he could, but that he would cull out all the unmerchantable fruit. The plaintiff objected to the culling, but said he would deliver them and demand that they all be received as fruit properly delivered under the contract. A contract of sale must be construed with-reference to the character of the property which is the sub