11 Cal. 2d 233 | Cal. | 1938
This action was commenced by the California Canning Peach Growers against Frances 0. Williams and E. R. Williams (husband and wife) and A. D. Poggetto to recover from them $21,333.12 (reduced at the time of trial by stipulation to $21,226.66) alleged to be owing to the association by these parties. In addition the association seeks to recover liquidated damages for failure on the part of defendants to deliver to the association their 1935 crop from the Empire ranch. The complaint sets forth the entire theory of plaintiff’s cause of action in detail. Poggetto is sued as a silent partner, coadventurer or undisclosed principal of the Williams. The action covers all of Williams’ activities with the association for many years, covers many separate contracts and many different ranches.
The action has been tried twice. At the end of the first. trial judgment was entered in Mrs. Williams’ favor, but against Mr. Williams and Poggetto in the sum of $21,226.66. On the issue of liquidated damages for nondelivery from the Empire ranch for 1935 the court found in favor of all defendants. The basis of the trial court’s decision was that Poggetto was a partner of Williams in the various transac
The judgment in favor of Mrs. Williams has become final. The association did not move for a new trial after judgment was entered in her favor at the conclusion of the first trial. No appeal has been taken from that judgment. The rights of the association as against her are therefore not involved on this appeal.
No necessity exists for reviewing in detail each of the contracts between Williams and the association involved on this appeal. Williams was one of the organizers of appellant, was a director from 1922 to 1935, and was at one time vice-president. Poggetto during all of the times here involved was general manager of appellant. From 1922 to 1928 Williams owned several peach orchards. As to each of such orchards he signed a regular marketing agreement with the association, became an owner member, and was paid for his fruit accordingly. In 1928 he lost the ownership of his various ranches through foreclosures. Beginning in 1929 and continuing thereafter he rented various orchards and signed them up with the association under what he and the association believed were renter member contracts. It is appellant’s theory that all of the deals subsequent to 1928 were regular marketing contracts, and that payments made in excess of the amounts called for by such contracts are recoverable by the association.
The evidence shows that in 1929 the association was badly in need of peaches, a heavy frost having destroyed a large portion of the expected crop. Williams discovered that the Empire ranch in Stanislaus. County was unaffected by the
During the years 1929 to 1934 (1932 being excepted) Williams rented or leased other orchards not owned by Poggetto, and as to each of them entered into similar contracts with the association. In all of these deals he was financed largely by Poggetto. On most of these deals he was paid on a renter member basis as defined in the 1924 resolution. After the new directors were elected in 1935, and the change in policy at least as to some renter members adopted, this action was brought. The major portion of the $21,226.66 sued for ($14,101) is for the recovery of alleged overpayments paid to him on the theory that he was a renter member. $5,268.55 is for an amount owed by Williams to the association for the year 1927 growing out of the operation of the Sunnydale ranch then owned by him, which amount was apparently written off as a bad debt by mistake. The balance is for smaller items not necessary to enumerate.
The trial court made elaborate findings. It found the facts in reference to the difficulties facing the association in 1923, and the circumstances surrounding the passage of the renter member resolution of January 15, 1924, substantially as such facts were found in the other three cases involving this association and already disposed of. These facts need not be recounted here. The court found that this resolution was in fact passed in that year and has never since been amended, rescinded or repealed. Appellant challenges this finding, contending that the evidence introduced by it indicates that the resolution was never passed and that the minutes purporting to show its passage are forgeries. Evidence was introduced by appellant that the minutes purport
The trial court also found that after the passage of the resolution, pursuant thereto, the field men of the association were instructed to solicit renter members; that during the period 1924 to 1935 many such members were solicited and signed with the association as renter members; that such members, during such period, were paid in accordance with the 1924 resolution; that during this period the renter member situation was frequently discussed by the members of the board of directors; that the fact that the association would and did make contracts with renters in accordance with the 1924 resolution “was generally known among renters of peach orchards ’ ’. The court also found that many important benefits accrued to the association by reason of these renter member contracts. Those benefits have been commented on in the prior decisions and need not be repeated here. All of the findings above discussed find ample support in the record.
The court found that after 1928 Williams did not own any peach orchards, and that all of his outstanding owner contracts were terminated in that year. The court then made specific findings as to each of the many ranches rented by Williams during 1929 to 1934 and signed up by him with the association. With the exception of the Empire ranch, these many ranches and contracts do not require separate consideration. They are all controlled by substantially the same facts and the same principles of law. The Empire ranch, for reasons hereafter appearing, requires separate consideration.
First as to the ranches other than the Empire. As to each of them the trial court found that Williams rented them
As to each of the contracts dealing with these ranches appellant urges that the only legal contract between the parties was a regular marketing agreement; that the renter member arrangement was entirely oral; that to show the existence of such oral contract violates the parol evidence rule; and that respondents have therefore been overpaid in excess of the amount called for by the written contracts.
This identical contention as to substantially similar facts has been fully discussed in the Williams case, supra. Everything that was said in that ease is equally applicable here. Not only did the admission of the oral testimony not violate the parol evidence rule for the reasons pointed out in the Williams case, but as also pointed out in that case, even if the renter member arrangements were entirely oral, inasmuch as such arrangements have been fully performed, the written contracts must be deemed to have been modified by the execution of the oral contracts.
Appellant also urges that the resolution of 1924 was ultra vires, and that all contracts entered into pursuant thereto must be held to be void and illegal. This contention has been discussed at length and disposed of adversely to appellant’s contention in the Harkey, Stafford and Williams cases, decided this day (ante, pp. 188, 212, 221 [78 Pac. (2d) 1137, 1150, 1154].) On the authority of those cases, and for the reasons therein stated the point is held to be without merit.
Appellant also urges that in view of the fact that Williams was a director and former officer of the company, and that his partner Poggetto was general manager of the company, even if renter member contracts entered into by
An entirely different situation exists as to the Empire ranch. This ranch was purchased by Poggetto in 1929, and from that date until May of 1935 he owned this ranch. As to the year 1929, the court below made no finding as to whether Poggetto and Williams were partners in the operation of this ranch, but simply found that in that year Williams operated the ranch for Poggetto under an agreement to split the gross profits equally, Williams to bear the expenses. For the years 1930, 1931, 1933 and 1934 the court expressly found that as to the operation of this ranch “A. D. Poggetto was a co-partner with the defendant E. B. Williams”. The reason for the failure to make a similar finding as to the year 1929 does not clearly appear, although there is some evidence of a different arrangement between the two defendants as to this year than existed in the later years. As to the years 1930, 1931, 1933 and 1934 the finding is amply supported. As to these four years, therefore, Poggetto was the owner of the Empire ranch and Williams was his partner. Under the provisions of the resolution of January 15, 1924, the privileges therein granted were restricted to renters of orchards. Owners of ranches not renting their orchards were not qualified to come under the resolution. Owners were admissible to
The trial court found that in 1927 Williams as owner operated the Sunnydale ranch under a regular marketing agreement; that the association (deducting certain credits) overpaid Williams for the peaches delivered from this ranch in that year the sum of $5,268.55; that Poggetto was not interested in the operations of this ranch; that the above mentioned sum was written off the books of the company as a bad debt (apparently by mistake); that Williams has never repaid the sum thus owing to the association. Although the court found that Williams owed this sum to the association, it also found that this debt was offset by various sums found owing to Williams by the association. One of the claims found to partially offset Williams’ debt to the association was the sum of $223.39, that the association owed to Williams under his 1927 contract covering the El Camino ranch, and has not paid. Poggetto had no interest in this ranch. This is a proper credit against the debt owed by
For the year 1933, as to the Empire ranch, the court found that Williams had been paid as a renter member. In the amount the renter member price exceeds the owner member price, in accordance with the views already expressed, this constituted an overpayment. Williams and Poggetto should be required to repay to the association such overpayment received by them.
For the year 1929, as to the Empire ranch, the court found that Williams had been paid as a renter member; but, as already indicated, did not find whether or not Williams was a partner of the owner Poggetto in this year. On the retrial if it should develop that they were partners for that year, they should be required to repay the overpayment.
Another credit allowed by the trial court was in the sum of $533.81 for freestone peaches found to have been delivered by Williams to the association in 1933 and for which he has not been paid. The evidence in reference to this
Appellant objects to the finding that the indebtedness of $5,268.55 above mentioned was owed solely by Williams, and not also by Poggetto. That finding is amply supported by the record.
The appellant also objects to the findings and conclusions that deny it the right to liquidated damages for respondents’ failure to deliver to the association from the Empire ranch for the season of 1935. The court found that this ranch was sold by Poggetto to Mrs. Williams in May of 1935, and that thereupon the contract between Mr. Williams and the association was terminated in accordance with the terms of the contract. The judgment in favor of Mrs. Williams, as already pointed out, has become final.
Appellant urges that the sale to Mrs. Williams was not bona fide. The evidence demonstrates that Mrs. Williams purchased the ranch in 1935 with borrowed money and that Mr. Williams did not contribute one cent towards its purchase. The evidence supports the trial court’s findings on this issue. It should also be pointed out that the evidence shows that the association accepted the cancellation of this contract.
In addition to the main item of $5,268.55 found to be owing from Williams to the association, above discussed, the trial court also found that Williams owed some small sums for fertilizer purchased by him. These items, as well as the amount of the judgment in the Williams case, supra, should be taken into consideration on the new trial in arriving at a proper accounting.
From what has been said it is obvious that a new trial must be had as to some of the issues involved herein. No necessity exists for the retrying of any issue held in this opinion to have been properly decided. Those issues decided upon conflicting evidence which evidence has been held herein sufficient to support the findings, should not be retried. A new accounting must be had in order to determine the proper amount owing by Williams, particularly because of his operation of the Empire ranch, and to determine the proper amount of the offsets that should be allowed him. The status of the Empire ranch for the year 1929 must be determined.
For the foregoing reasons the judgment appealed from is reversed with instructions to the trial court to proceed as herein indicated. Bach side to bear its own costs on this appeal.
Houser, J., and Langdon, J., deeming themselves disqualified, did not participate herein.
Rehearing denied.