Dabovich & Co. v. Emeric
Before: Baldwin
Synopsis
Appeal from the Fourth District, County of San Francisco.
This was an action in the Court below for a breach of, contract. The plaintiffs, who are fruit dealers in San Francisco, purchased of the defendant, for the sum of four hundred dollars, sixteen-fortieths of the pears growing in a certain orchard. After such sale, the defendant, for the consideration of fifty dollars, executed the following guaranty:
“ Having this day sold to Messrs. Nicholas Dabovich & Co. three shares and one-fifth of one share of the pears standing on the trees of the orchard of San Pablo, which orchard is divided into eight shares, I hereby guarantee to. Nicholas Dabovich & Co. that the said three shares and one-fifth of one share will be at their disposal on the trees, free of trouble or annoyance from other parties to them.
“Joseph Embbio.
“ San Francisco, June 14,1856.”
The plaintiffs alleged a demand and refusal on the part of the defendant. To this complaint there was a demurrer, which was overruled, and a judgment for the plaintiffs.
From this judgment the defendant appealed to this Court, and at the January Term, 1857, (see 7 Cal. Rep. 209,) this Court reversed the judgment of the Court below, and remanded the cause with leave to the plaintiff to amend his complaint.
On the remanding of the case, the plaintiffs amended their complaint. The pleading set out the contract in its words, and averred for a breach of it, that the plaintiffs went to the orchard to gather the pears from the trees on which they were, and that the plaintiffs were then and there troubled and annoyed, and were by force, and arms, and threats of violence, ejected from the orchard, and hindered and prevented from gathering the pears; that the defendant was duly notified of this hindrance; that the defendant utterly refused and neglected to deliver the pears to the plaintiffs, or place the same at the disposal of the plaintiffs, according to the terms of the contract, free from annoyance or trouble ; and avers damages to the amount of S3,000. Issues were joined on this complaint, and the case was tried by a jury, under the directions of the Court.
The Court gave to the jury, at the réquest of the plaintiff, the following instructions:
1st. “ That if the jury should find for plaintiff, then the measure of damages is the highest value or market price of the pears on the trees, since the first demand for the delivery of the same.”
2d. “ That in the estimate of damages, they shall also allow the loss of time, value of services, and wages caused by the failure of defendant to perform his contract.”
3d. “ That the contract and guarantee was entire, and the plaintiffs had the right to refuse to receive a portion of the fruit without the whole.”
Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.
This controversy, which has been going on a long time, and been heretofore before this Court, grew out of a contract in these words :
“ Having this day sold to Messrs. Dabovich & Co. three shares and one-fifth of one share of the pears standing on the trees of the orchard of San Pablo, which orchard is divided into eight shares, I hereby guarantee to said Nicholas Dabovich & Co., that the said three shares and one-fifth of one share of said pears will be at their disposal on the trees, free from trouble and annoyance from other parties to them.
“ (Signed,) Jos. Emeric.
“June 14th, 1856.”
When the case was before this Court (January T., 1858) this contract was construed. They say, “ from the very nature of the first contract of ^ale, the delivery took place as soon as the sale was made. So far as the sale was concerned, they became the owners of the fruit upon the trees, and could only maintain an action against the defendant in case he converted the property or interfered with them in picking it. As to the guarantee, its effect was simply that the pears should be on the trees at the disposal of the plaintiffs, and that they should not be disturbed in their right to gather them by third persons. To recover on this contract, it was necessary to allege and [179]prove either that the fruit was not on the trees, or that the plaintiffs had been interfered with by third parties gathering it. There was no necessity for any demand upon the defendant unless for the purpose of enabling him to comply with the terms of his guarantee.”
This opinion was given on appeal from the Superior Court of San Francisco after the first trial, which resulted in verdict and judgment for the plaintiffs.
On the remanding of the case, the plaintiffs amended their complaint. This pleading set out the contract in its words, and averred for a breach of it, that the plaintiffs went to the orchard to gather the pears from the trees on which they were, and that the plaintiffs were then and there troubled and annoyed, and were by force, and arms, and threats of violence, ejected from the orchard, and hindered and prevented from gathering the pears; that the defendant was duly notified of this hindrance ; that the defendant utterly refused and neglected to deliver the pears to the plaintiffs, or place the same at the disposal of the plaintiffs, according to the terms of the contract, free from annoyance or trouble; and avers damages to the amount of $3,000. Issues were joined on this complaint, and the case was tried by jury under the directions of the Court. Sundry instructions were given and refused. These form the main subject of review here.
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