Asamen v. Thompson

GRIFFIN, J. This is an appeal by defendant J. L. Thompson from an order denying a motion for release of attachment. On July 19, 1939, plaintiff and respondent filed his verified complaint alleging, in one count, that he is a shipper and distributor of carrots and other perishable products; that defendants J. L. Thompson and J. T. Bunn were doing business under the fictitious firm name of Crown Packing Company; that they acted together as a copartnership under the fictitious firm name of Crown Packing Company; that the Crown Packing Company, sued herein as John Doe Company, was a corporation organized in the State of California; that the true name of the corporation was unknown; that on May 22, 1939, the plaintiff owned or had under his control 100 [658]acres of carrots; that he entered into an exclusive written sales agreement with the defendants for the sale of the carrots in words and figures as follows:

“May 22, 1939.

“Sales Agreement.

“We hereby appoint the Crown Packing Company as our exclusive sales agent to sell our carrots, approximately 100 ears mdre or less, at best possible price. The Crown Packing Company guarantees $1.05 per crate f.o.b. to cover packing and growing cost. The Crown Packing Company shall receive as selling commission 10 per cent of over and above guaranteed price.

“Z. Asamen

“Z. Asamen

“J. T. Bunn

“Crown Packing Co.”;

that the contract was executed and was to be performed in the city of Brawley; that it was understood and agreed that the carrots mentioned in the agreement were to be packed and prepared for shipping at Brawley and that the f.o.b. price referred to in the agreement was understood to be f.o.b. Brawley; that 85c per crate represents the cost of packing under the terms of the agreement and 20e per crate represents the cost of growing the carrots under the terms thereof; that plaintiff has performed everything upon his part agreed to be performed in the agreement; that pursuant to its terms the defendants accepted and sold 35 cars of carrots, each car containing 348 crates; that defendants accounted for only 28 cars of carrots and have paid to plaintiff upon the guaranteed price of $1.05 per crate, the sum of $6,415.96, and defendants have failed and refused to account for the other 7 ears received by them; that the defendants have received payment for the other 7 ears of carrots not accounted for by them; that the 35 cars of carrots accepted and sold by them contained a total of 12,180 crates and that at the guaranteed price of $1.05 per crate the defendants became indebted to plaintiff therefor in the sum of $12,789; that no part thereof has been paid except the sum of $6,415.96; and that there remains owing from defendants the sum of $6,373.04 balance due for carrots already received and sold by them,