124 Wash. 628 | Wash. | 1923
— Appellant, who was a dealer in farm produce, entered into the following written contract with respondent, who is a farmer:
“M. Kohno, Oct. 23, 1919.
“Grandview, Wash.
“We hereby offer to purchase from you at the price of $37 per ton, between 8 and 10 cars of number one gems to be loaded by you f. o. b. cars at Grandview, Washington, number one quality, delivery to be made as follows: As soon as possible, sort to be good commercial one, 4 oz. and larger, reasonably smooth.
This contract covers all his potatoes.
No. 272. By F. M. Balcom.
“I hereby accept the foregoing offer and acknowledge receipt of $800 as advance payment thereon.
“Dated this-day of-, 191 — .
“M. Kohno.”
There is no dispute regarding the meaning of the words “number one gems.” Respondent was a tenant farmer, occupying and farming a certain known 80-acre tract. After the delivery of some 78 tons of potatoes under the contract, respondent failed and refused to make further delivery upon the ground that the remainder of the crop grown by him belonged to the landlord, and thereafter of the crop grown by respondent and ready for harvest when the contract was made, there was sold and delivered to others 48 tons and 1,953 pounds of potatoes.
Appellant brought this action, alleging that, on the strength of his contract, he had resold to others; that respondent’s failure to deliver the entire crop required
The trial court found that the respondent was the owner of but 65% of the crop raised by him; that the words: “This contract covers all his potatoes,” applied to and meant only such 65% of the crop; that there had been a delivery of all of the 65% except 4 tons and 671 pounds; that appellant was damaged by such failure to deliver in the sum of $312.84, and this sum was allowed as a credit or offset on $852.27, the unpaid portion of the purchase price of the potatoes delivered, which remained in the hands of appellant at the time of the breach, and rendered judgment against appellant for the difference, from which judgment he has appealed.
It now seems to be the contention of the appellant that there was no ambiguity in the contract, and that he was entitled to receive, in any event, the minimum of eight cars named in the contract. If respondent had been a dealer in potatoes instead of a grower, and if the words, “This contract covers all his potatoes,” had been omitted from the contract, this contention might be maintainable; but the words last quoted must have been placed in the contract for a purpose, and when we take into consideration what was within the contemplation of the parties at the time the contract was made, the purpose becomes evident. Respondent had twenty-five acres of potatoes, only a few of which had been dug. Neither party could know with any certainty how much the yield would be, or what percent
Respondent has cross-appealed, but the conclusion already reached renders it unnecessary to discuss the points raised by him, excepting one only. That is that appellant’s failure to pay promptly on delivery for the potatoes which were delivered was a breach of the contract on his part, and having breached the contract he cannot recover. It may be assumed that, there being no time for payment fixed in the contract, it was appellant’s duty to pay on delivery. Apparently he was doing so until matters occurred indicating that respondent would refuse full delivery. Respondent testifies, and appellant admits, that he asked for his money, but it nowhere appears that he made the payment of the money then due him a condition affecting
For the reasons indicated, the judgment will be reversed with directions to enter a judgment in harmony with the views herein expressed.
Main, C. J., Mitchell, and Pemberton, JJ., concur.