Larrey v. Sellers

GRIFFIN, J. Plaintiffs brought this action against defendant setting forth in one" count an action on a promissory note in the sum of $1,582.83. The second count arose out of a dairy deal between the parties. The defendant leased to plaintiffs certain land in Fresno for the purpose of conducting a dairy thereon. The term of the lease was three years and provided, in substance, that the defendant was, on or before May 1, 1940, to build a grade “A” barn on the land for 30 cows and was to furnish, among other things, necessary feed for the cattle. Plaintiffs guaranteed that each cow would produce 300 pounds of butterfat per year per 1,000 pounds live weight and that they would milk and care for the cows. The defendant was to receive as rental for the land, feed and other things furnished, one-half of the gross receipts from the sale of the milk and butterfat from plaintiffs’ cows. The butterfat was to be averaged at the expiration of each twelve month period and in the event the cows should fail to average 300 pounds of butterfat per 1,000 pounds live weight per cow the difference was to be computed at the average price received for the butterfat throughout the preceding twelve month period, and plaintiffs were to reimburse the defendant for one-half of the deficiency. In the event the butterfat average exceeded 300 pounds per year per 1,000 pounds live [455]weight per cow, the defendant was to receive 40 per cent and the plaintiffs 60 per cent of the gross amount received from the sale of all butterfat in excess of 300 pounds per year per cow.

The defendant failed to construct the barn called for in the agreement. In 1942, because of the failure of the defendant to construct the barn, differences arose between the parties. They later entered into another written agreement determining their rights and terminating the previous agreement. In negotiating the last contract the defendant was represented by an attorney of his own choosing. It reads in part as follows :

“2. That in determining the amount of butterfat produced on said premises from May 1st, 1940 (the beginning of the period of said lease) to June 30th, 1942, a four per cent (4%) increase of butterfat is to be allowed over the amount actually delivered and sold, plus 600 gallons of milk a month hereinafter mentioned to compensate lessees for the failure of lessor to build a feed barn as provided in said lease.

“3. The figures to be used in determining the amount of butterfat produced are to be the figures of the creameries to which the milk and butterfat were sold, plus 600 gallons of milk per month which is an allowance for milk used for domestic consumption, feeding of calves, etc.”