Brown v. Continental Grain Co.

SCHOTTKY, J. Continental Grain Company, a corporation, has appealed from a judgment in favor of Lewis G. Brown in an action brought by him to recover the balance allegedly due for grain sold and delivered to Continental. Recovery was denied Continental on its cross-complaint to recover advance payments to Brown allegedly in excess of the value of the grain delivered.

In 1957, Brown, a grain grower, and Continental entered into two contracts for the sale of barley at $2.10 per hundredweight. The total amount of barley sold was approximately 2,334,000 pounds. Brown received the sum of $46,212.60 on account. The bill of sale provided that the balance due, “if any, shall be paid upon completion of delivery, final computation to be based on outturn weights as determined by an official public weighmaster’s certificate.” It also provided that if the outturn weight were less than the weight upon which payment had been made, the seller would repay the buyer the amount of the overpayment.

Continental received a certain amount of grain from Brown and then asserted that the value of the amount of grain received did not equal the amount of prepayment. Brown alleged that he had delivered more grain than he had been given credit for. Brown testified that he had weighed 2,877,515 pounds of grain into certain storage bins designated as Bins 1, 2, 3, 4, 12, 13 and 14. From these bins he sold and delivered 598,080 pounds of grain to third parties and the balance was sold and delivered to Continental. According to Brown’s figures the amount delivered to Continental was 2,279,435 pounds of barley, or $47,868.13 worth, which less the prepayment left a balance due him of $1,655.53. Brown also testified that Continental’s agent, Raymond, sent trucks to the ranch to be loaded with grain. When each truck was loaded it left the ranch and it was under the control of Continental. Brown alleged that he did not receive receipts for all the deliveries. In theory, each truck after it left the Brown ranch was taken to a weighmaster’s station where the grain was weighed. The total weight of the barley delivered was then determined by totaling all the weighmaster’s certificates. These certificates were delivered to Raymond by the truck driver and he delivered them to the San Francisco office of Continental. According to Continental’s records only $42,138.72 worth of grain was delivered to it.

[806]The trial court found that the defendants had the complete and sole control of the barley grain delivered to the truckers at the bins and the weighing thereof; that some of the barley grain was weighed and copies of the weighmaster’s certificates were delivered to plaintiff; that it was not true that all the weighmaster’s certificates were delivered to plaintiff; and that the total sum due for the total barley grain delivered in accordance with said bills of sale at the rate of $2.10 per hundredweight was $47,868.13. Judgment was entered in favor of plaintiff in accordance with said findings.