Estrella Vineyard Co. v. Butler

California Supreme Court Jun 24, 1899 No. S. F. No. 791Published

Before: Chipman

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Holding. The court held that the plaintiff was not required to elect between inconsistent causes of action, that the trial court properly excluded an unauthorized contract signed by an agent in his individual capacity, and that the jury instructions were sufficient.

Issues

Whether the plaintiff was required to elect between causes of action for breach of contract and quantum valebat.
Whether a contract signed by an agent in his individual capacity was admissible to bind the principal.
Whether the trial court erred in excluding evidence or refusing requested jury instructions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Plaintiff upon such complaint was not obliged to elect.”

“There was nothing on the face of the instrument to show that Taft was acting as agent of any person; no reference whatever is made to plaintiff as principal or otherwise”

“It is not within the province of the court to say which one of these witnesses the jury should have believed.”

Synopsis

Assumpsit—Sale of Raisins upon Commission—Pleading—Election of Counts.—In an action to recover the value of raisins delivered to the defendants as commission agents, in which the first count of the complaint alleges delivery of the raisins to the defendants under an express agreement to make returns at a fixed price, the second count is in quantum valebat, and the third count alleges an agreement to sell and deliver the raisins for a fixed price, the plaintiff cannot be compelled to elect between the counts.

Id.—Agreement fob Fixed Return—Conflicting Evidence—Support of Verdict.—It is sufficient to support a verdict in favor of the plaintiff, as to the agreement alleged in the complaint, that plaintiff was to receive a fixed return for the raisins delivered, that the testimony for the plaintiff tends to sustain the allegation, notwithstanding conflicting evidence to the contrary.

Id.—Evidence—Written Contract by Agent in His Own Name-Proof of Authority or Knowledge Required.—A written contract with the defendants for the delivery of raisins, signed by one who was an agent for the plaintiff, in his own name, without any designation of agency, in the contract or in the signature, the authority for the execution of which was not proved, but disproved, is not admissible in evidence against the plaintiff, without such proof or without showing or offering to show that the plaintiff delivered the raisins thereunder with actual or implied knowledge of its existence. It is not enough to show that defendants on their part received the raisins under such contract.

Id.—Quality of Raisins—Mabket Value.—Where the contract proved by the plaintiff called for the delivery of raisins of good quality in a particular market, without specifying the place where they were to be sold, evidence is admissible to show the quality of the raisins delivered, and their market value in that market.

Instructions—Refusal of Requests.—The court may properly refuse requested instructions which invade the province of the jury, or may mislead them, or which are covered by instructions given in the charge of the court.

CHIPMAN, C. Action to recover the value of 255,000 pounds of raisins, alleged to be worth $7,650, on account of which plaintiff had received only $4,090.82, leaving due the sum of $3,559.18. The cause was tried by the court with a jury, and plaintiff had a verdict for $2,840, upon which judgment was entered. The appeal is from the judgment and from an order denying motion for a new trial, and comes here on a statement of the case. The complaint sets forth three separate causes of action:

1. That between September 1, 1894, and January 1, 1895, at Fresno, California, plaintiff delivered to defendants the raisins in question, to be sold by defendants, as commission agents of plaintiff; and that defendants agreed, in consideration of said delivery, and prior thereto, that plaintiff would receive from defendants for the sale of said raisins a price not less than three cents per pound, and that defendants would account to plaintiff and pay plaintiff as the proceeds of said raisins a price not less than three cents per pound; 2. Alleges the delivery of the raisins at the request of defendants; that they afterward sold the same, and that the reasonable value thereof was $7,650, [234]no part of which has been paid except’$4,090.82; 3. Alleges the delivery of the raisins to defendant upon an agreement that they would pay plaintiff three cents per pound therefor.

Defendants answered, specifically denying most of the material allegations of the complaint, but admitted the delivery of the raisins and alleged that they were so delivered “to be handled, marketed, and sold by said defendants upon commission, and as the agents and representatives of plaintiff, upon commission”; in an amended answer defendants set up a contract in writing, dated May 11, 1894, between one G. W. Taft and defendants, under which it is alleged that the raisins were delivered to defendants, and not otherwise. This contract provided, in brief, that defendants were to receive the raisins in the sweat-box, and pack and otherwise prepare them for market and sell them upon a commission of five per cent of the proceeds of this sale.

1. Defendants allege error in refusing their motion to compel plaintiff to elect. In the first count or cause of action plaintiff alleges delivery to defendants as commission agents under a specific agreement by defendants to make returns of proceeds at a given price; the second count is laid on quantum valebat; the third count alleges an agreement to sell and deliver for a given price. Plaintiff upon such complaint was not obliged to elect. (Code Civ. Proc., sec. 427; Cowan v. Abbott, 92 Cal. 100.)

Estrella Vineyard Co. v. Butler

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