McClain v. Bercut-Richards Packing Co.

ADAMS, P. J. This is an action to recover a balance alleged to be due to plaintiff for pears sold to defendant during the canning season of 1941. Plaintiff in his complaint alleges that he entered into a contract to sell to defendant what he describes as “hail damaged” pears, at $45 per ton, that defendant paid $45 per ton for a portion of the fruit delivered, but allowed only $38.50 per ton for the balance because same was “hail damaged”; and plaintiff contends, first, that defendant was bound by the contract to pay $45 per ton for all the pears delivered, and, second, that it is estopped from claiming that the contract provided that the pears should be free from “hail damage.” The contract, copy of which is attached to the complaint as an exhibit, was the standard form adopted by the Canners League of California and recites that the seller has sold, and the buyer has bought, “upon the terms and conditions expressed below and on the back hereof, the quantity, quality and variety hereinafter specified of fruit ...” Two hundred and fifty tons more or less, Bartlett Pears, at $45 per ton, inches in diameter not less than 2%, “10% Tolerance Prorate Grade.” On the back of the contract appears what plaintiff refers to as a “hidden” clause, which provides that: “1. Seller shall deliver, at point of delivery, promptly after harvesting, all fruit covered by this contract of good shape, quality, and in good condition for canning, at the state of maturity Buyer may require, free from doubles, worms, scab, frost rings, hail or rain damage, red streaks in flesh, windfalls, split pits, hard-end, black-end, mildew, decay, water berries, Spanish measles, sunburn, cracks, gum, parasites, fungi, bruises, spray residue, or other imperfections, and all fruit shall be of a color and texture suitable for canning into Choice grade as such Choice grade is generally understood in the canning trade. . . . (d) No. 1 Pears shall be 2% inches or more in diameter, shall produce two perfect peeled halves and shall be of a length not less than 1]4 times the diameter of the Pear. ’ ’

Plaintiff’s theory appears to be that the foregoing contract was one for the sale of pears of a “Hail Damaged [422]Grade,” and not “Prorate Grade” as recited therein. He alleged that defendant is estopped from denying this or from relying upon the so-called hidden clause in the contract because it knew at the time the contract was entered into that plaintiff’s pears were damaged by hail, that the contract form was furnished by defendant, that the provision that the pears should be free from hail damage was printed on the back of the contract in very small type and was not called to plaintiff’s attention, that plaintiff did not know that it formed a part of said contract, that defendant led plaintiff to believe that no such provision was in the contract, that just prior to the execution of the contract plaintiff and defendant inspected plaintiff’s orchards and defendant was informed that hail damaged pears were the only pears that plaintiff had to sell, that defendant made a thorough inspection of said crops and. commented on the fact that the pears were badly hail damaged and that in view of said hail damage he would pay but $45 per ton for same; also that at the time of the execution of the contract defendant told plaintiff that they were governed by the prorate regulations relating to Bartlett pears for the year 1941 which governed the kind of hail damaged pears that could be delivered to the canneries, and that said regulations and the words “10% Tolerance Prorate Grade ’ ’ meant that defendant was buying plaintiff’s hail damaged pears that could pass inspection. Plaintiff then alleged that he believed the said representation of defendant and was induced thereby to sign the contract; that he could have sold said pears to other parties for $45 a ton, and that he would not have entered into said contract with defendant if defendant had not led him to believe that hail ■ damaged pears was the subject of said contract; also that the contract was executed under and pursuant to the Agricultural Prorate Act [Stats. 1933, p. 1969, as amended; Peering's Gen. Laws, 1937, Act 143a], and the 1941 grade regulations on canning Bartlett pears as approved by the authorities of the State Department of Agriculture, and that all of the provisions of said act and said regulations were by law made a part of said contract.