Ah Tong v. Earle Fruit Co.

Britt, C. Plaintiff, a Chinese, early in August, 1893, delivered a quantity of pears to defendant, a corporation, to be sold upon commission; he alleged in his complaint that defendant, as part of its contract with him, guaranteed to him a net return of fifteen dollars per ton for the pears; that he delivered 184,190 pounds of the fruit to defendant, and was entitled to receive therefor at the rate guaranteed the sum of $1006.44; that defendant paid only the sum of $550, leaving a balance due of $456.44, for which he sues. Defendant denied the guaranty, and set up as a counterclaim that the sum paid by it .to plaintiff was merely an advance on his fruit; [681]that the net proceeds of sale were less than that sum; that plaintiff is indebted to it for the excess advanced to him as well as for expense of packing the fruit, freights on same, etc., to the amount of $1257.53, for which it demanded judgment. An issue was also made on the quantity of fruit delivered by plaintiff. Plaintiff obtained á verdict and judgment for $389.33.

Defendant packed the pears in boxes, called forty-pound boxes, and shipped them by rail to the East for sale—six carloads in all, of four hundred and ninety-seven boxes each; several witnesses, who had been engaged more or less in the business of packing fruit, testified their opinion that the boxes, if well packed, held above forty pounds each. Appellant attacks this evidence at almost every conceivable point; but the chief objections seem to be that the issue did not admit of such proof, and that the witnesses were not shown to be sufficiently skilled to justify the reception of their opinions. The question was as to the number of tons within the alleged guaranty; the number of boxes was known, but there had been no actual weighing nor agreement that the fruit should be measured by the nominal capacity of the boxes; such capacity was, therefore, fairly a subject for estimation. (Frey v. Lowden, 70 Cal. 550; Posachane etc. Co. v. Standart, 97 Cal. 476.) It appears that defendant made no objection at the trial to the competency of the witnesses to estimate the weight of fruit in the boxes, and it cannot be urged for the first time on appeal. (Brumley v. Flint, 87 Cal. 471.) It is said that plaintiff did not prove the boxes to be “well packed”; this fact, however, was fully established by the testimony of witnesses produced by defendant.

Defendant sought in various ways to introduce evidence of its habits of business, that it was usual for growers to pay the expense of getting their fruit to its packing-house at Fresno, etc; but as the contract be= tween the parties was express and did not rest in implication or presumption, and it was not shown that they