Gates v. Carquinez Packing Co.

Belcher, C. C. This action was brought to recover the sum of $301.60, balance alleged to be due for fruit sold and delivered by plaintiff to defendant. The court below gave judgment for plaintiff; and defendant appealed.

The facts are these: The plaintiff owned a tract of land in Vaca valley, on which he was raising apricots, peaches, and Bartlett pears, and the defendant was engaged in the business of canning fruit at Benicia. On the 15th of October, 1886, the parties entered into a written contract for the sale and purchase of the fruit to be raised on the plaintiff’s trees during the five years then next ensuing. The portions of the contract material to the determination of the questions presented on this appeal are as follows:—

[440]“Said party of the first part sells, and said party of the second part buys, said fruit, upon the terms and conditions hereinafter expressed. The party of the first part, at his own cost and expense, shall, during said term, gather said fruit each season when the same is in a suitable condition of ripeness for canning purposes, and deliver the same on board the cars at the railroad station at Vacaville, in said Solano County, consigned to party of the second part at Benicia, in open fifty-pound boxes, such as are now used to transport fruit from said point to canneries. Freight from Vacaville to Benicia, and all charges thereafter, to be paid by said party of the second part.....

“Said fruit shall be consigned to the party of the second part at its cannery at Benicia, in said Solano County, and immediately upon its arrival at said cannery shall be weighed by said party of the second part.....

“ The party of the first part shall send to the party of the second part, at the cannery at Benicia, a daily statement of the weights of the fruits shipped that day, and in case the weight at the cannery shall not substantially correspond with the same, or in case the quality of the fruit shall not be according to contract as herein provided, the party of the first part shall be immediately notified by telephone or telegraph, and the fruit shall be held twelve hours for inspection and adjustment of weights, and arrangement as to rebate in case of defective quality, should the party of the second part be willing to accept the same at a rebate. Should said party of the secoiid part fail to give such notice, or so hold said fruit, the quality of the fruit and the shipping weight shall be conclusively taken as correct.”