Cooperative Dairymen's League v. Lucerne Cream & Butter Co.

STURTEVANT, J. In an action brought to recover moneys alleged to be due under a written instrument the trial court made findings in favor of the defendant and from the judgment entered the plaintiff has appealed.

On January 17, 1931, Cooperative Dairymen’s League, a corporation, entered into a contract with Dairyland Products, Inc., under the terms of which the former agreed to sell and the latter agreed to buy the marketable cow’s milk delivered by the seller. The contract was in writing and contained certain blanks to be filled but they were never filled. One of such provisions was as follows: “Term of contract: This agreement shall be and remain in force for the period of six months from the — day of-, 190—■ to the — day of -, 19—, inclusive, and thereafter from month to month until terminated by either party hereto by giving sixty (60) days notice in writing to the other of its desire to terminate.” That contract was modified on July 17, 1931. The latter instrument provided: “ . . . the contract shall continue in force for one (1) year from the 17th day of July, 1931, to the 17th day of July, 1932.” Thereafter, on May 2, 1932, the Lucerne Cream and Butter Company took over the Dairyland creamery in Oakland. On May 6th an agreement was executed by Cooperative Dairymen’s League as seller and Lucerne Cream and Butter Company as buyer. It refers to and adopts the original agreement and the agreement of modification just above referred to. For the convenience of the parties the Lucerne executed de novo the agreement dated January 17, 1931, and the agreement dated July 17, 1931, and forwarded them to the Cooperative Dairymen’s League together with a letter in which it was stated: “The enclosed agreements are intended to supersede the agreements executed by Dairyland Products, Inc., effective as of the date upon which we acquired the assets formerly owned by the Dairyland Products, Inc.” On the contract so evidenced the plaintiff sued [164]for moneys which it claimed fell due from May, 1932, to March, 1933, both months inclusive.

The plaintiff contends that the original contract between the parties as modified by the supplemental agreement of May 6, 1932, remained in full force and effect until March 31, 1933. As noted above the instrument dated January 17, 1931, by failing to fill in the blanks, did not state any date of termination. The instrument dated July 17, 1931, expressly provided that it would terminate on the 17th day of July, 1932. The agreement dated May 6, 1932, was silent on the subject. During the trial the plaintiff contended that it had the right by parol to show that the contract was extended to March 31, 1933. (Streff v. Gold Medal Creamery Co., 96 Cal. App. 18 [273 Pac. 831] ; Dunham, Corrigan & Hayden Co. v. Thermoid Rubber Co., 84 Cal. App. 669 [258 Pac. 663].) It is sufficient to state that evidence was offered and received from both parties on that issue. The trial court made a finding thereon in favor of the defendant. It follows that the contention of the plaintiff may not be sustained.