Bratton & Moretti v. Finerman & Son

GRIFFIN, P. J. In an amended complaint plaintiffs seek to recover from defendants Finerman and Son, a copartnership, et al, and from defendant and appellant Harry Finerman individually, $4,510.28 on an open book account for fertilizer sold and delivered to them. Defendants and appellant answered and denied generally the allegations of the complaint. Appellant admitted indebtedness in an approximate sum of $872.79. Therein they set up certain provisions of two written contracts between appellant, as shipper, and one M. C. Evans and Cecil Allen, growers, in which the latter two agreed with appellant that they would pay all charges incurred in connection with growing crops on the grower’s property and that appellant shipper, who was to participate in the net profits, would assist in the financing of the undertaking. Appellant filed a cross-complaint setting up these two contracts and named plaintiffs, as well as Evans and Allen, as cross-defendants. They alleged Evans and Allen were solely liable for fertilizer used upon their lands. The prayer is that judgment be entered in favor of Bratton and Moretti et al., against Evans and Allen for said sums found due, and to hold that cross-complainant was not indebted to plaintiffs in any amount for the furnishing of said fertilizer to them.

Evans answered the cross-complaint, admitted the execution of the contract, but denied generally the other allegations. An [433]answer was filed by cross-defendant Allen. He likewise admitted signing the contract, alleged appellant had never rendered a true accounting under it, and appellant was indebted to him, and asked the court not to determine the obligations of this cross-defendant, if any, to pay any of the other parties to the action until such an accounting had been ordered.

The evidence, generally speaking, shows that plaintiffs’ main business was the sale of anhydrous ammonia in Imperial Valley. In June, 1955, Moretti, a partner in plaintiffs’ firm, had a conversation with appellant Finerman in which Finer-man stated “he had melons, some under contract and some he was growing himself” and that he, Finerman, would like to give plaintiffs his fertilizer business; that about April, 1955, he and appellant made a tour of certain ranches appellant himself was farming, and pointed out other ranches where he had deals with the growers (including Allen and Evans, as well as one Singh) ; that he had a deal with Evans and Allen to take care of the bill for fertilizer used by them on their land; that he owed them money and he would guarantee plaintiffs would get their money and “see that you get all of your money for the fertilizer”; that either he or these other persons would take care of the ordering of the fertilizer; that he gave plaintiffs the gate number of their premises; that thereafter he placed orders with plaintiffs for such fertilizer and, relying upon this agreement, it was delivered according to instructions and charged on plaintiffs’ books directly and personally to appellant Finerman; that statements of said account were regularly mailed to appellant and he made a payment of $1,000 on it without any objection as to the items or method of billing until after this action was instituted. Invoices and ledger sheets of plaintiffs’ books were received in evidence and verified this statement, and the accuracy of these accounts is not questioned.