Turlock Frozen Foods, Inc. v. Grom

VALLEE, J. Appeal by defendant from an adverse judgment in an action for the agreed value of ollali berries sold by plaintiff to defendant.1 The defense was that the sale was by sample, and the berries did not correspond to the sample. The court found the sale was by description and the berries corresponded to the description — United States Department of Agriculture Grade B or better.

The only question is whether the finding that the sale was by description is supported by the evidence.

Plaintiff was engaged in processing and selling frozen berries. Its office and plant facilities were in Turlock. Defendant, an individual doing business in Los Angeles under the name Apple Processors, processed and distributed fruit fillings to pie bakers. Jack E. Shaw was a salesman for Perrin C. Miller and Company, food brokers. Both are named together with plaintiff, as cross-defendants in the cross-complaint filed by defendant for breach of contract and reimbursement for the purchase price advanced for part of the berries.

In June of 1957 Mr. Shaw was authorized by Mr. William Jones, president of plaintiff, to offer for sale at 14% cents a pound a quantity of 1,000 to 1,500 30-pound cases of frozen ollali berries which were being processed for plaintiff in Turlock. Shaw obtained samples of the ollali berries from plaintiff. He called on defendant, showed him the berries and probably left some with him as was his custom. He did not tell defendant where he had obtained the samples. They discussed the use of ollali berries for pie filling. About a week or 10 days later defendant told Shaw he could use ollali berries and wanted to know if Shaw could find 1,000 or 1,500 cartons. [439]Shaw told him plaintiff was packing about that quantity and he would call and try to arrange the purchase. Shaw called Mr. Jones who told him they had only 1,182 cases packed at that time, he thought the total would not be over 1,500, and he would give the entire pack to Apple Processors. Defendant said he would take them. The next day, on June 27, 1957, Shaw wrote a sales memorandum covering 1,182 cases and forwarded the original to defendant and a duplicate original to plaintiff. It is set out in the margin.2

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