77 Cal. App. 2d 543 | Cal. Ct. App. | 1947
Plaintiff brought this action to recover damages from defendant for breach of contract. The trial court found that defendant had breached the contract, fixed plaintiff’s damages at $8,610.35, and entered its judgment accordingly. Defendant appeals.
The facts are as follows: Under date of January 20, 1941, Joseph Smooke, general manager of plaintiff, and Neal Harris, secretary of defendant, on behalf of their respective companies, entered into a properly executed written contract whereby the defendant agreed to sell and the plaintiff agreed to buy ‘ ‘ during each of the years 1941, 1942 and 1943, a total of not less than 300,000 gallons and not more than 400,000 gallons 59% grain cider vinegar.” The contract also provided that “for the purpose of this contract, the year shall start October 1 and end September 30”; that “the price of this vinegar shall be five cents per gallon less two percent F.O.B. Sebastopol payment in five days from shipment”; that the vinegar should be of a certain type and should be shipped in a designated fashion; that the “seller has made contracts for the purchase of apple juice and has storage capacity in Sebastopol to carry said apple juice. But in the case of crop failure, fire, earthquake or an act of God making it impossible to fulfill the terms of this contract, then both buyer and seller shall be relieved from further fulfillment until such catastrophe may be remedied.”
In 1941 the parties orally agreed that the price of the vinegar covered by the above contract should be changed to six cents per gallon, and in 1942 the parties orally agreed that such price should be seven and one-half cents per gallon. At no time during the contract period did defendant deliver the quantity of vinegar it had contracted to deliver. For the year ending September 30, 1942, the defendant delivered 209,403 gallons; for the year ending September 30,1943, there was delivered 73,879 gallons; and that for the year ending September 30, 1944, but 5,586 gallons were delivered.
In September, 1943, Harris called upon Smooke and told him that his company refused to make any further deliveries unless plaintiff agreed to an increase in the price. According to Smooke, Harris then told him that “if you want to have any more vinegar you have to pay me ten cents a gallon for that vinegar or otherwise we will stop making deliveries.” The. plaintiff thereupon consulted its attorney, and the attorney wrote to defendant under date of September 29, 1943. A day or so later Harris called upon the attorney. The attorney testified that Harris then told Mm “that unless he got more money he would not make any deliveries.” When Harris’ attention was called to the contract price Harris replied: “Well, I can’t make any deliveries at that price, and I won’t make any unless I get an increase in price. ... I want 7% cents for the first 50,000 gallons, 8% cents for the next 50,000, 91/2 cents for the third 50,000, and 10 cents a gallon for all over that.” TMs suggested increase was to be under the 1943 contract. When Harris’ attention was called to the fact that his company had a covering contract to secure apple juice from the California Conserving Company, he replied: “I won’t do that unless I get that increase in price. I will not make any deliveries of that kind.” The attorney
Harris, as a witness for defendant, denied most of the above statements attributed to him, except that he did admit making a sliding scale proposition to plaintiff’s attorney somewhat different from that testified to by the attorney for plaintiff. He denied refusing to deliver, and testified that when Smooke refused to pay the higher price, he, Harris, told the attorney: “O.K., then I will have to deliver.” This conflict was for the trial court.
This action was filed on October 14, 1943. On November 12, 1943, which was before service of summons but after defendant had actual knowledge that the action had been filed, defendant tendered a delivery of a little over 2,700 gallons of vinegar at 7% cents per gallon. The plaintiff rejected the delivery and by letter dated November 15, 1943, informed defendant that the refusal was based upon the fact “that you had previously refused to carry out the terms of your contract with us.” The letter also stated that “Tour attempted delivery is not in good faith, but merely one to avoid your liability for damages.” Smooke testified that this delivery was rejected on the advice of his attorney.
Harris testified that between August 1, 1943, and September 30, 1944, his company could have delivered the full 350,000 gallons.
In January, 1944, the defendant offered 50,000 gallons for delivery. This was offered, however, on the condition that acceptance by plaintiff would clear up all the outstanding contracts. The plaintiff rejected the offer. There is evidence that there was no vinegar available to plaintiff at any price on the open market from August, 1943, to September, 1944, and also evidence that the price of vinegar had gone up to 20 cents a gallon.
In view of defendant’s contentions on this appeal some reference must be made to the pleadings. The cause went to trial on the first amended complaint and the answer thereto. The amended complaint sets forth the contract of January
The court found that the 1941 and 1943 contracts were executed as set forth in the amended complaint and the amendment thereto, and that when the 1943 contract was entered into the defendant was then delinquent in deliveries under the 1941 contract; that the 1943 contract modified the 1941 contract; that it was agreed that “performance under the terms of the August, 1943, contract should be in full for the January 20, 1941, contract”; that defendant delivered 5,586 gallons of vinegar under the 1943 contract; that after the last delivery made in September, 1943, defendant breached the 1943 contract by refusing to make further deliveries thereunder ; that there was no other vinegar obtainable on the market; that plaintiff could not have obtained any other vinegar except that it could have obtained the balance of 344,414 gallons by paying defendant ten cents a gallon; that by reason of defendant’s failure to perform the 1943 contract plaintiff has been damaged in the sum of $8,610.35. This figure was determined by multiplying the 344,414 undelivered gallons by 2% cents, the difference between 7% cents per gallon provided in the 1943 contract and the 10 cents per gallon demanded by defendant.
The most that can be claimed for defendant’s position is that the second contract modified the first, but it cannot be doubted that the second was clearly within the scope of the first. It follows that the amendment to conform to proof did not plead an entirely different cause of action from that originally pleaded. At most there was but one cause of action imperfectly pleaded in the original complaint. (Gray v. Janss Investment Co., 186 Cal. 634 [200 P. 401]; Frost v. Witter, 132 Cal. 421 [64 P. 705, 84 Am.St.Rep. 53].) Under such circumstances it was clearly within the discretion of the trial court to permit the amendment to conform to the proof.
The allowance of amendments to conform to the proof rests in the sound discretion of the trial court. An abuse of discretion is not shown unless prejudice appears and unless new and entirely different issues are thus brought into the case. The greatest liberality is encouraged in this respect. (See collection of cases 21 Cal.Jur. p. 209, § 143.) It must be remembered that the purpose of pleadings is to fairly inform the parties of the nature of the cause of action or the defense. It is not to create traps to ensnare the unwary. Where a case is fully and fairly tried, where all relevant issues are fully developed, and where both sides have a full and fair opportunity to present all relevant evidence on the pertinent issues a cause will not be reversed simply because the pleadings fail to fully disclose all of the related issues. (Grossetti v. Sweasey, 176 Cal. 793 [169 P. 687].)
In the instant case defendant was in no way prejudiced by ‘the amendment. It knew of the modification—in fact, it pleaded the 1943 contract in its answer. The 1943 contract was introduced into evidence early in the proceedings, and defendant was given a full and fair' opportunity to refute all issues raised thereby. Defendant cross-examined plaintiff’s witnesses at length on the 1943 contract. Defendant was in no way misled or-prejudiced by the amendment. (See Peters v. Binnard, 219 Cal. 141 [25 P.2d- 834] ; Karlik v. Peters, 106 Cal.App. 126 [288 P. 863].)
The defendant contends that there is no evidence to support the finding that it breached the 1943 contract. It urges that the evidence shows that it was willing to sell the vinegar at 7%' cents a gallon after learning that its request for an increase would not be granted. In this connection reliance is placed upon the evidence that after the filing of this action it tendered some 2,700 gallons at 7% cents per
The defendant next urges a series of arguments relating to a claimed duty on the part of respondent to mitigate the damages. It is first urged that plaintiff should have accepted the 2,700 gallons tendered, and that it was error to allow damages based on the difference between the 7 1/2 cent contract price and the 10 cents demanded on this gallonage. While it is true that there is a duty on the part of the innocent party to minimize damages (see discussion 5 Williston on Contracts (rev. ed.), p. 3875, § 1385), and while this duty may, in some cases, include the duty to buy from the defaulting seller at a demanded higher price on penalty of having damages limited accordingly (Sargent v. North End Water Co., 190 Cal. 512 [213 P. 33] ; Severini v. Sutter-Butte Canal Co., 59 Cal.App. 154 [210 P. 49] ; Henrici v. South Feather Land etc. Co., 177 Cal. 442 [170 P. 1135] ; Mabb v. Stewart, 147 Cal. 413 [81 P. 1073]), such duty does not extend to the compulsion of accepting at even the contract price less than the quantity specified in the contract where, as here, the circumstances show there was no intention to deliver the balance, at least where suit is filed before such imperfect tender. (§ 1764, Civ. Code; 2 Williston on Sales (2d ed.) p. 1495, § 599g; 5 Williston on Contracts (rev. ed.), p. 3877, § 1386.) Here, under the evidence most favorable to plaintiff, it reasonably can be inferred that the tender of the 2,700 gallons was not in good faith; that it was made to gain an advantage in the impending trial; and that no further- vinegar would be offered at the contract price.
It is next urged that the trial court erred in computing damages on the balance of the undelivered gallonage at
The last contention of defendant needs but scant mention. It is urged that in fact it was plaintiff who breached the contract because, so it is contended, the parties by their prior dealings had placed the practical construction on their contracts that the price fixed therein was subject to change. In this connection reliance is placed on the evidence that in 1941 the parties orally agreed to raise the price from the original five cents a gallon to six cents, in 1942 orally agreed to fix the price at 7% cents per gallon, and in 1943 fixed the price in writing at 7% cents per gallon. The argument is without merit. The rule of practical construction cannot be so applied, certainly not as a matter of law. To say that, because one of the contracting parties agrees, on several occasions, he will pay a higher price than is provided in the contract, he is forever barred as a matter of law from insist
The judgment appealed from is affirmed.
Ward, J., and Schottky, J. pro tem., concurred.
A petition for a rehearing was denied February 7, 1947, and appellants’ -petition for a hearing by the Supreme Court was denied March 6, 1947.