Busick v. Rosenberg Bros. & Co.

BARNARD, P. J. This is an action based upon the breach of a contract for the purchase of certain raisins.

On October 22, 1946, plaintiff sold his entire crop of raisins to Bonner Packing Company for $335 per ton. The contract provided that the seller guaranteed the fruit to be his sole and absolute property “free from all encumbrances”; that title should immediately pass to the buyer; and that payment was to be made on delivery. It also contained the provision “No moisture test. If moisture excessive contract to be canceled without penalty.” On October 28, 1946, the plaintiff delivered a portion of his crop to Bonner Packing Company, which refused to accept them, saying they were too wet.

On November 8, 1946, the plaintiff wrote to Bonner Packing Company stating that its men had rejected his raisins for moisture and had canceled his contract, and that he intended to sell the raisins for the best price obtainable. On the same day, November 8, he entered into a contract with the defendant for the sale of 100 tons of his raisins at $350 a ton. This contract also contained a provision that the seller guaranteed the fruit to be his sole and absolute property free from all encumbrances.

On November 12, 1946, the defendant received a telegram from Bonner Packing Company stating that it had a contract for these raisins, dated October 22, and giving notice that it [578]was insisting upon delivery to it under the terms of that contract. On November 12, Bonner Packing Company also sent a letter to the plaintiff stating it had been informed that he had contracted with the defendant for the sale of his raisins notwithstanding his previous contract with Bonner Packing Company, and insisting upon delivery of the raisins in accordance with the contract of October 22. The plaintiff admitted receiving this letter and probably received it on November 13. On November 13, he attempted to deliver a part of the 100 tons of raisins to the defendant and offered to deliver the balance. The defendant refused to accept delivery for the reason that it had just been notified that Bonner Packing Company was claiming the raisins under its previous contract.

On November 13, the plaintiff sent a letter to Bonner Packing Company demanding that it “immediately revoke your order to Rosenberg Bros. & Co. that they not buy my raisins”; stating that Bonner Packing Company had terminated its contract by insisting on a moisture test; and demanding that it cease representing that it owned these raisins or that he would hold it responsible for any loss he might sustain in failure to sell these raisins at top market price. On November 15, the plaintiff wrote to the defendant notifying them that he had delivered 16 tons of raisins on November 13, and that they had been refused. On November 18, defendant’s counsel replied to this letter stating that, " as you already know, ’ ’ delivery had not been accepted because defendant had been notified by Bonner Packing Company that it had purchased the raisins and was insisting upon delivery. On December 27, the plaintiff wrote to the defendant offering to deliver the raisins under the contract of November 8. On December 30, defendant’s counsel replied to that letter stating that delivery of the raisins would not be accepted as title to the raisins had already passed to Bonner Packing Company at the time the November 8 contract was entered into.