Tice v. Lemos

ADAMS, P. J. Plaintiff in an amended and supplemental complaint alleged that he had entered into an oral contract with defendant to purchase from him about 200 head of cattle for an agreed price of $20,000 of which $100 had been paid ; that subsequently he tendered to defendant $19,900 and •demanded the delivery of the cattle, which defendant refused. [235]Plaintiff also set forth a memorandum written by plaintiff but signed by defendant which acknowledged the receipt of $100 as a deposit for defendant’s entire herd consisting of about 200 head of cattle at a price of $20,000. In a second count plaintiff claimed damages for the failure of defendant to perform.

Defendant answered, alleging that there had been no oral contract but only the writing set forth by plaintiff, denied refusal on his part to perform in compliance therewith, denied any liability for damages claimed by plaintiff, alleged that he had tendered to plaintiff all the cattle referred to in the written memorandum, but that plaintiff had refused to pay the balance due, to wit: $19,900, or to accept delivery of the cattle.

The case was tried by the court without a jury, and, at the conclusion of plaintiff’s evidence a motion for a non-suit, interposed by defendant, was granted. No findings were filed, the court merely stating that it was its view that plaintiff was “required to have a license” as a “dealer.”

From the order granting the nonsuit plaintiff has appealed; and the question presented by him is whether, under the facts as shown by his evidence, his contract with defendant, who, it had been stipulated, was a“producer” within the provisions of section 1261 of the Agricultural Code, was for the purchase of the cattle for “his own use,” under subdivision (f) of section 1262 of said code, so as to exempt him from the license requirements of said code.

Section 1261 of the Agricultural Code defines a producer as any person engaged in the business of growing or producing any farm product, including livestock. Subdivision (f) of said section defines a “dealer” as “any person other than a commission merchant or cash buyer who solicits, contracts for or obtains from the producer thereof title, possession or control of any farm product, or who buys or agrees to buy any farm product from the producer thereof.”

Section 1262, subdivision (f) exempts from the provisions of the chapter “Any person buying farm products for his own use or consumption.” Section 1263 provides that “No person shall act as a commission merchant, dealer, broker, cash buyer, or agent without having obtained a license as provided in this chapter.”