On аn appeal from an order refusing to dismiss an attachment in the above-entitled action this day decided
(ante,
p. 657 [
On February 28, 1940, plaintiff and respondent filed his amended complaint, alleged the transaction and agreement set forth in the original complaint, designated the Crown Packing Company, a corporation, as party defendant, and alleged generally that J. L. Thompson and J. T. Bunn acted together as a copartnership and that in transacting their business as such copartners they did business under the firm names of Thompson and Bunn, J. L. Thompson Company, and Crown Packing Company, and that they did use the corporation’s name with its consent, as an instrumentality by and through which they conducted their partnership business at all times mentioned; that it was the intention and purpose of J. T. Bunn in signing the written agreement above the name Crown Packing Company, to sign the same for and on behalf of himself and his copartner J. L. Thompson; that the contract was signed with the knowledge and consent of Thompson and with the purpose and intent of entering into the agreement for and on behalf of the partnership of J. T. Bunn and J. L. Thompson; that defendants Bunn and Thompson and - each of them represented themselves as copartners to the plaintiff; that they were and did constitute the Crown Packing Company; that the Crown Packing Company, a corporation, is a corporation in name only and did not possess or own any assets of аny substantial value whatsoever; and that all the moneys received by the defendants Thompson and Bunn from the proceeds of carrots sold by them pursuant to the written agreement were deposited in their various partnership accounts except that of the Crown Packing Company, and checks were drawn on the partnership accounts and made payable to the plaintiff. In the amended complaint plaintiff added an additional count alleging that defendants were indebted to him in the sum of $10,889.87, on account of goods and produce sold and delivered to them.
Defendants Crown Packing Company, a corporation, J. T. *665 Bunn and J. L. Thompson, individually and in all of their alleged capacities, answered the amended complaint. Bunn and Thompson denied that they executed the agreement in any capacity as sued but claimed that the Crown Packing Company, as a corporation, through J. T. Bunn, as an officer thereof, did sign the agreement for the corporation and not otherwise. Bach defendant denied generally the other allegations of the amended complaint and claimed that the plaintiff fraudulently misrepresented the grade of the carrots and therefore the corporation was not bound by the agreement; that the plaintiff misinterpreted the terms of the agreement and misapplied the application of its terms to the facts. By way of answer and cross-complaint the Crown Packing Company, a corporation, alleged such claimed misrepresentation of the grade of the carrots and that by reаson thereof the carrots thus harvested did not realize on the market a price sufficient to pay the $1.05 packing and growing cost and that by plaintiff’s neglect in packing, harvesting and loading such inferior grade of carrots the corporation was damaged in the sum of $5,000. The corporation prayed judgment accordingly and that the court reform the agreement to express the true intent of the parties.
Plaintiff answered the cross-complaint and alleged that the defendants saw and inspected each car of carrots at the time they were loaded and that they accepted them for sale under the agreement and therefore they were thereby estopped from denying any liability under the contract. A jury was demanded by plaintiff and after trial a verdict was returned in his favor and against all defendants, jointly and severally, in the sum of $7,250. No findings of fact or conclusions of law were made or signed by the trial court. Judgment on the verdict was entered by the clerk. Defendants moved for an instructed verdict and judgment notwithstanding the verdict, which were denied. Likewise denied was a motion to set aside the verdict and judgment on certain grounds, one of which was that the court failed to make findings of fact and conclusions of law. On January 18, 1941, the trial court, on its own motion, ordered the clerk to enter a corrected judgment in the same amount and against the same defendants. From the judgment and these orders defendants appeal.
First, it is argued that although the evidence might have been sufficient to sustain the judgment аs to the Crown Packing Company, it was insufficient to show that Thompson *666 or Bunn were liable individually or in any capacity whatsoever. The evidence, although conflicting, if believed by the jury, was also sufficient for this purpose. Considering the evidence most favorable to respondent, as we must do in determining this question, it shows that in May, 1939, one Omatsu, field man for the Crown Packing Company, Thompson and Bunn met Asamen in his carrot field “to see the carrots”; that Omatsu introduced Bunn and Thompson and said that “Thompson was a partner of Mr. Bunn”; that after a short conversation they all went through the carrot field; that “Omatsu picked a few carrots here and there and showed it to Mr. Bunn and Mr. Thompson”; that Asamen spoke to Omatsu and said: “Does this boss have any money?” to which he replied: “Don’t worry about the money. He has got about a million dollars to back him.”
One Fujimoto, a witness for respondent, testified that he grew the carrots here involved; that he was present the day the written agreement was made; that he conversed with Thompson; that he had known him ten years; that he asked him if he was still with Mr. Bunn and he said “Yes, I have a joint deal with him on everything in Imperial Valley but I have a business of my own at Yuma”; that Thompson told him that he had made a “general survey of the condition of the carrots throughout the United States and this was a good place to make some money, and he thought the carrots would go up to $1.75 to $2.00, and he said he had a brand known as the Jo-Jo brand and with using that brand he was positive he would get top prices”; that he didn’t tell Asamen that Thompson and Bunn were wоrking' as partners but did tell him that they had a joint deal and that they were working together because ‘ ‘ Thompson said he would handle the entire selling deal ’ ’; that Asamen’s bookkeeper typed the agreement; that Thompson dictated it and later read it and handed it to Bunn to sign; that Fujimoto acted as interpreter; that during the entire conversation nothing was said about the Crown Packing Company; that the first time he ever heard about the corporation was when the bank account was attached.
Asamen tеstified that he did not have any recollection of the Crown Packing Company and would not have signed the agreement if lie had thought he was dealing with anyone other than Thompson and Bunn.
One Miller, field man for Asamen, testified that shortly before signing the contract Mr. Bunn introduced Thompson *667 to him and said: “Mr. Thompson and T are Avorking on a deal to handle these carrots for Mr. Asamen.”
One other Avitness, shed foreman Avhere carrots Avere packed, testified that Thompson Avas there every day; that Thompson and Bunn genеrally came together and that he never suav one of them alone that he could remember; that Avhen one of them spoke to give orders he Avould always say “We want this” or “We will do this.”
Bunn testified in reference to the first conversation when all were present that “We don’t have any such thing as an interpreter. We stood there in the shade of a tree and all tallied about the carrot field and what he wanted us to do for him and how he wanted us to handle the carrots, the same as we are talking now. Q. Did he speak in English ? A. Yes, sir, enough so that we knew what the deal was that he gave us.” (Italics ours.)
After some of the carrots were sold Asamen received a letter dated June 20, 1939, reading as follows:
“Enclosed is ‘our check’ No. 1448 payable to yourself in the amount of $5167.49, together with a complete account on each and every car as per statement enclosed. In compliance with our understanding and agreement, inasmuch as these cars did hot bring the $1.05 per crate, which sum you felt was the cost to you for harvesting, packing and loading, we have not charged any commission, and are paying you the full amount received for said cars. Had these сars been graded U. S. No. 1, as was our understanding, there would have been no difficulty in receiving your costs back plus a nice commission to us. There remains about 13 cars not yet heard from and upon receipt of account sales we will forward you our cheek in accordance with our agreement.
“Very truly yours,
‘ ‘ CroAvn Packing Company,
“By J. T. Bunn.”
The “our check” so enclosed, reads in part as follows: “Thompson & Bunn . . . (Safety-Service - Secrecy) . . . Pay to the order of Z. Asamen $5167.49 . . . Thompson & Bum, by J. T. Bunn.” A second check in the sum of $818.27 was similarly signed and sent tо Asamen. On July 21, 1939, Asamen received another letter signed * ‘ Crown Packing Company” in which was enclosed “our cheek” No. 192 stating that it was a full and final payment on the carrot deal which *668 read: “J. L. Thompson Company . . . Growers and Shippers, El Centro, California- . . . Pay to the order of Z. Asamen $785.38 . . . J. L. Thompson Company, By J. T. Bunn.” This cheek was refused by Asamen because of the condition attached that it was a payment in full.
Appellant Thompson testified that the Thompson & Bunn check above mentioned was drawn on a partnership account of theirs. Thompson had first denied that Bunn had any money in the J. L. Thompson account, but later testified that “if there was any money of J. T. Bunn’s in there it was derived from joint venture or profits we might have”; that “the money that was deposited there was the last account sales of the carrot deal.” In Thompson’s deposition offered in evidence, he testified in response to the question: “On Mr. Bunn’s funds and yours, you deposited in either account, it didn’t make any difference? A. On what accounts do you refer? Q. On those carrot deals where the Crown Packing Company and Mr. Bunn were interested? A. There was no Crown Packing Company ... no reason why I should put money in Crown Packing Company. Q. Did the Crown Packing Company put money in your accounts ? A. No. . . . Q. Did you have a partnership with J. T. Bunn in 1939? A. I don’t know whether you would call it a partnership. I considered it a joint venture. Q. What do you mean by a joint venture? A. We will look at a bunch of lettuce and put up an equal amount of money and we go 50-50 on it, 50 per cent of expenses and 50 per cent of the profits, and 50 per cent of the losses.”
Omatsu was paid by Thompson and Bunn partnership checks. Eleven of them were placed in evidence and covered a period from February 3, 1939, to May 12, 1939. In this respect Thompson testified that “I don’t recall whether I made any payments to him (Omatsu) after May, 1939. Evidence of a similar transaction in reference to the purchase of the carrots by the so-called Crown Packing Company was admitted in evidence wherein both Thompson and Bunn had previously negotiated a contract with a Mr. Both under the name of Crown Packing Company and the produce was paid for by checks drawn on the Thompson and Bunn account. Appellants objected to the admission of this evidence. The evidence was admissible.
(Hoeft
v.
Hotchkiss,
It is appellants’ next contention that respondent orally agreed, at the time of the execution of the written agreement, that all of the carrots packed would grade U. S. No. 1. Respondent denies such a contemporaneous oral agreement and claims that all of the defendants were continuously on the ground and examined the crop thoroughly; that he paid an inspector $15 per day and a federal state inspector $5.00 per car to inspect the carrots before shipment. Although there is considerable evidence that the carrots did not grade U. S'. No. 1, there was no evidence that they were not marketable. There is nothing stated in the agreement that they were to be U. S. No. 1 grade. Defendants have been in the produce business for more than 20 years. They apparently knew more about merchandising carrots on the market than Asamen. They went over the fields, duly inspected the carrots and had them packed in their own way. They relied on their own judgment and skill in determining their marketability. It is apparent that they did not rely upon any representation made by Asamen. After they had examined them daily and after examining the reports of the inspectors, the carrots were not rejected by them. They were received, shipped and
*670
sold all over the United States and brought a return of $22,-636.52. This evidence is sufficient to show that they were marketable. Assuming the truth of appellаnts’ contention that respondent guaranteed that the carrots would grade U. S. No. 1, the evidence discloses that the appellants had knowledge of the fact that the carrots did not meet the requirements of their alleged guarantee. This evidence, if believed by the jury, was sufficient to preclude appellants from prevailing in that defense.
(Streff
v.
Gold Medal Creamery Co.,
Appellants next contend that the record shows that Asamen had mortgaged the carrot crop to Fujimoto and that it was therefore incumbent upon respondent to have shown that the mortgage was paid in full in order that plaintiff could legally maintain this action. It is not surprising that appellants cite no authority in support of this contention. The cause of action was in the plaintiff either as prinсipal or as agent.
(Earl Fruit Co.
v.
Herman,
Exceptions were taken to rulings of the court on the admissibility of certain evidence and the exclusion of other proffered evidence. We have examined the record and the rulings in reference thereto. No prejudicial error appears.
The respondent sought a judgment in the sum of $10,889.87. The evidence would have supported such a judgment in that amount. However, the jury found for respondent only in the sum of $7,250. Apparently the jury found in favor of the defendants, in part, as to the value, quantity or quality of the remaining carrots unharvested. The evidence supports the lesser amount found by the jury to be due respondent. Appellants cannot complain because the jury found in an amount less than that prayed for and established by the evidence.
(Lady
v.
Ruppe,
The final argument of appellants is deserving of more consideration. It is appellants’ contention that the cross-complaint alleged that respondent was guilty of fraud and
*671
misrepresentation as to the grade of carrоts and that as a result thereof the carrots did not realize on the market a price sufficient to pay the packing and growing cost and that by reason thereof appellants were damaged in the sum of $5,000. The prayer of the cross-complaint seeks an
order reforming the instrument or agreement alleged in the complaint
to express the true intent and purpose of the parties as alleged in the cross-complaint and for such other and further relief as would be meet and proper in equity, together with a judgment in the sum of $5,000 as damages. A form of verdict was submitted to the jury reading in part as follows: “We, the jury . . . find for the defendant, Crown Packing Company, a corporation, and upon its cross-complaint and against the plaintiff and assess the damages ... in the sum of $-.” Another form was submitted and was adopted by the jury reading: “We, the jury . . . find for the plaintiff and against all of the defendants jointly and severally in the sum of $7,250.00 ...” The jury returned no separate verdict as to the prayer contained in appellants’ cross-complaint. The trial court made no findings upon the equitable relief sought in appellants’ cross-complaint. Appellants moved the trial court for such a finding. This motion was denied. It is now argued that any verdict of the jury on the question as to whether the written agreement should be reformed in accordance with the prayer of the cross-complaint would have been only advisory and that any judgment based solely upon a general verdict such as was rendered in this case without being preceded by a finding аnd conclusion of law properly signed by the trial court would be premature and void as to that issue, citing
Brandt
v.
Wheaton,
The complaint sets forth an action at law on a common count for goods sold and delivered and for damages for breach of contract. Plaintiff was entitled to a jury as a matter of law. (§ 592 Code Civ. Proc.;
Kearney
v.
Bell,
It has been stated by the Supreme Court in many cases that when a defendant interposes equitable and legal defenses to the complaint, the proper rule of procedure for the court is to hear and dispose of the equitable defense before proceeding to try the issues of law.
(Arguello
v.
Edinger,
In
Swasey
v.
Adair,
“It has never been held, however, that every defense of an equitable nature that mаy be interposed to an action at law must be heard and determined by the court before proceeding to try the issues at law. Such a rule of practice would, in many instances, be inconvenient, and would tend to embarrass rather than facilitate the trial of the cause. The cases in which the rule has been laid down were cases in ejectment in which the defendant asserted such a controlling equity as, if ripened into a decree, would prevent the plaintiff from asserting his legal claim. The equitable defense which is referred to in the rule is properly an equitable right of action existing in behalf of the defendant which he might have asserted in an independent suit brought by him against the plaintiff for the purpose of enforcing such right, but which *673 under our system he can also rely upon as a defense in an action involving the same subject-matter brought against him by the plaintiff. The party relying upon such equitable defense must, however, plead it with the same fullness and particularity as is required in cases involving like subjects of inquiry in suits in equity. His answеr, being in the nature of a bill in equity, must contain all the essential averments of such a bill. He then becomes an actor with respect to the matters alleged by him, and his defense must be of such a character as may be ripened into a decree in his favor.” (Citing cases.)
The question presented, therefore, is whether the cross-complaint in the instant action stated a cause of action in equity in reference to the prayer for reformation of the written agreement involved, so that it may be sаid that the jury and the trial court did not dispose of this equitable question. We therefore must inspect the cross-complaint to determine whether, under the foregoing principles, it stated a cause of •action which would have justified the trial court in proceeding to try that issue in advance of the trial of the issues at law. Plaintiff and respondent’s complaint sets up the original written agreement in haec verba. Appellants’ answer, as distinguished from their cross-complaint, alleges, among other things, that “with respect to the instrument set forth in plaintiff’s amended complaint, it was the mutual agreement and understanding of the parties and the intention of each and both of the parties to said instrument that said instrument should express the oral agreement then and there made between the parties and that said instrument should be interpreted to mean and should mean as follows: That plaintiff was to furnish to the Crown Packing Company, a corporation, one hundred (100) carloads of U. S. No. 1 carrots to be sold by and through the Crown Packing Company, a сorporation, as the selling agent at the best obtainable market price, the Crown Packing Company to have and receive as a selling commission ten per cent of the sales price, but with the understanding and agreement that said ten per cent commission should not apply until there had been received more than $1.05 per crate for said carrots. . . . That if the plaintiff did not so -understand said instrument and did not intend the same to be so interpreted, then said plaintiff procured the execution thereof by the defendant Crown Packing Company through fraud and misrepresentation ...”
*674 The cross-complaint then follows and only alleges in this respect that “during the month of May, 1939, the plaintiff herein represented to the defendant, the Crown Packing Company, a corporation, that he owned or had under his control one hundred cars of carrots during the season of 1939, all of which said carrots would grade U. S. No. 1, and that the said plaintiff desired a sales agent for said carrots, and that the said plaintiff did cause said carrots to be harvested, hauled and packed and loaded on cars with the inspection certificate to be graded U. S. No. 1, and that the, said defendant, the 'Crown Packing Company, did sell said cars of carrots, and that it was understood and agreed between the parties to said action that the said commission to the said Crown Packing Company should not ‘ apply until there had been received more than $1.05 per crate for said carrots, that is, if a crate of carrots sold for $1.10 the Crown Pаcking Company was to receive five cents upon its commission. If a crate of carrots sold for $1.15 the Crown Packing Company would receive ten cents on its commission. That if a crate of carrots sold, for $1.20, or higher, the Crown Packing Company would receive ten per cent of the sale price.”
Appellants then prayed “that the plaintiff take nothing by his
action;
that an order be entered herein reforming said instrument to express the true intent and purpose between the parties.” If we examine the cross-complaint without the aid of or reference to plaintiff’s amended complaint or the answer of appellants, the cross-complaint does not state a cause of action. Appellants failed to set up in the cross-complaint
in haec verba,
or otherwise, the written agreement as originally executed, or its contents, and failed to allege therein the allegations set forth in the answer respecting the claimed mutual mistake and intention of the parties or the agreement claimed to have been executed as intended by them. This would have been a necessary part of any pleading which sought to reform that instrument. The inclusion of such original agreement in the cross-complaint by reference to plaintiff’s pleadings is not allowable.
(Coulthurst
v.
Coulthurst, 58
Cal. 239;
Collins
v.
Bartlett,
For the reasons expressed, the judgment should be and is affirmed.
Barnard, P. J., and Marks, J., concurred.