Rich v. Riverbank Canning Co.

ADAMS, P. J. Appellant Rich sued defendant Riverbank Canning Company to recover damages for the failure of defendant to take and pay for a crop of tomatoes grown by appellant in 1944, for the purchase of which defendant had contracted. It was alleged in plaintiff’s complaint that defend[379]ant had agreed to furnish plaintiff with picking boxes at his field, but had failed to furnish a sufficient number, and that as a result 1,289 tons of plaintiff’s tomatoes were undelivered, resulting in a loss to him of some $20,624, for which sum he prayed judgment.

Defendant, in its amended answer, incorporated the contract between the parties, denied that it had failed to furnish picking boxes, alleged that it had taken from plaintiff more than his pro rata share of the total amount of tomatoes defendant could handle, and set up as a further defense that by reason of a shortage of labor it had been unable to pack the entire quantity of tomatoes which its existing facilities would otherwise have been adequate to handle, and that, by reason of the provisions of the contract, it was excused from accepting delivery of more tomatoes from plaintiff than it actually did accept.

Section 13 of the contract which defendant relied upon provided: “In case of fire, strikes or other labor disturbances, lack of transportation facilities, . . . shortage of labor or supplies, ... or any unavoidable casualty or cause beyond the control of Buyer, affecting in any way the conduct of Buyer’s business or canning operations, including any obligation on Buyer’s part to transport the tomatoes covered hereby, or to furnish boxes therefor, Buyer will be excused from performance hereunder during the period that Buyer’s business or canning operations are so affected, and Buyer may, during such period, accept such portion of such tomatoes as Buyer, in its judgment, can economically handle.” (Italics added.)

After trial of the issues raised by the pleadings the trial court rendered judgment for defendant pursuant to findings in its favor. The findings recite that defendant furnished plaintiff boxes for the delivery of 1248.543 tons of tomatoes, but that it was not true that it “wholly failed, neglected and refused to deliver any greater number of boxes though often requested and demanded by the plaintiff”; also, “That it is not true that except for defendant’s refusal to furnish picking boxes the plaintiff would have delivered to the said defendant more than 1289 tons of tomatoes over and above the 1248.543 tons so delivered as aforesaid at the contract price of $25.00 per ton, or $32,225.00 worth of tomatoes; that it is not true that the plaintiff’s cost of picking, harvesting, and delivering said tomatoes to the defendant at his roadside would not have exceeded $9.00 per ton, or $11,601.00; that it is not true that plaintiff, as a direct and proximate result of defend