Firebaugh v. Thomas

BARNARD, P. J. On October 17, 1930, the respondent, as seller, and the appellants as buyer, entered into a written contract of sale of a crop of Emperor grapes then growing on respondent’s vineyard near Exeter. Among other things, the contract provided that the buyer was to pay for picking and hauling the crop, that the entire crop was to be picked not later than November 5th, that all grapes picked “shall meet the requirements of Growers Service Company and No. 1 Juice for Juice Grapes”, and that the buyer should not be liable under the contract if the fruit was not matured so as to permit picking on the dates named. The appellants began picking the grapes on November 12th, and continued until November 19th. On the night of that day a frost destroyed the grapes remaining on the vines and this action was brought for the purpose of recovering the contract price for the same. The court found in all respects in favor of the respondent and from a judgment which followed this appeal was taken.

Most of the points raised are based upon the contention that, under the contract, the appellants were not obligated to pick the crop but that the duty rested upon the respondent to pick and deliver the same. The complaint [711]alleged an agreement on the part of the appellants to pick the crop and a failure to perform in that regard. The appellants answered that they had picked and paid for all of said crop which met the requirement as to grade and quality; that in that regard they had fully complied with and performed all the covenants specified in the agreement to be performed by them; and further alleged that they had picked a certain quantity of grapes and that the sole and only reason why the remainder of the grapes were not picked by them was that the remainder of the crop was not of the grade or quality specified in the agreement, within the time named therein. There was evidence that the appellants at that time maintained ten picking crews for the purpose of picking grapes purchased by them in the Exeter district; that immediately after the contract was signed the appellant Sisler, who was the representative of the appellants in that district, asked the respondent to disc the vineyard to make it ready for picking and said that they would come and pick the crop on the next Monday or Tuesday; that the respondent’s husband later endeavored to find the appellant Sisler for the purpose of getting him to come and pick the crop; that he finally saw him and asked him if he did not want the grapes, telling him that he could sell them elsewhere, and Sisler replied: “Sure I want them;” that after trying many times to see Sisler the respondent’s husband was arranging to sell the grapes elsewhere when Sisler brought in a picking crew and commenced to pick on November 12th; and that the appellants then picked until November 19th, when the remainder of the crop was destroyed by frost. The terms of the contract are not clear with regard to which party was to do the picking and the best interpretation thereof, and of the agreement and understanding of the parties, is furnished by their subsequent action. The pleadings and evidence fully support the court’s findings and there is no merit to any of the contentions made that the appellants were not to pick the crop or that the respondent breached the contract by failing to pick and deliver the same. Likewise, all claims that the liability of appellants was limited by the final date for picking named in the contract, to wit, November 5th, are untenable not only because- the appel