Brietengross v. Theodore Krumm, Inc.

BARNARD, P. J. . This is an action to recover the agreed selling price of certain oranges, and certain commissions in connection with the sale of other oranges.

On December 9, 1936, a written contract was entered into between the plaintiff as “Seller” and the defendant as “Buyer”, which provided that the “Seller has sold and the Buyer has bought the entire crop of merchantable” oranges then growing on a described grove, at $1.50 per cwt. It was agreed that the picking and hauling were to be done at the expense of the buyer at the time and in the manner directed by it, receipt of a part of the purchase price was acknowledged, and it was provided that the balance was to be paid ten days after the fruit was picked. It was further agreed that “no windfall, split, off-bloom, soft or frozen fruit is contracted for or is to be paid for under the terms of this contract”. A further provision, that the seller is to look after and irrigate and cultivate the grove whenever necessary, is a part of the contract form that was used but, as shown by the evidence, this provision had no application here.

The oranges in question were destroyed by a freeze on January 7 or 8, 1937. The complaint in this action contained one count based upon the oranges covered by the above-described contract and three other counts based upon similar contracts, in each of which the cause of action had been assigned to this plaintiff. There were two additional causes of action for commission which the defendant had agreed to pay in connection with the sale of other oranges upon similar contracts.'

There was evidence that at the time these contracts were entered into the oranges in the respective crops were all merchantable and free from any splits, off-bloom and soft fruit, and that all of said oranges were then ripe and ready for [641]picking. There is also evidence that on several occasions prior to the date of the freeze the plaintiff and his assignors informed the defendant that the crops were ready to be picked, that the defendant assured them that he would pick the oranges shortly, that there were many days of good picking weather between the date of the contracts and the date of the freeze, and that between those dates the defendant picked oranges from other groves which it had subsequently purchased at a lower price.

The court found in all respects in favor of the plaintiff and awarded him a judgment for $983, from which this appeal was taken.