125 Cal. 232 | Cal. | 1899
Action to recover the value of 255,000 pounds of raisins, alleged to be worth $7,650, on account of which plaintiff had received only $4,090.82, leaving due the sum of $3,559.18. The cause was tried by the court with a jury, and plaintiff had a verdict for $2,840, upon which judgment was entered. The appeal is from the judgment and from an order denying motion for a new trial, and comes here on a statement of the case. The complaint sets forth three separate causes of action:
1. That between September 1, 1894, and January 1, 1895, at Fresno, California, plaintiff delivered to defendants the raisins in question, to be sold by defendants, as commission agents of plaintiff; and that defendants agreed, in consideration of said delivery, and prior thereto, that plaintiff would receive from defendants for the sale of said raisins a price not less than three cents per pound, and that defendants would account to plaintiff and pay plaintiff as the proceeds of said raisins a price not less than three cents per pound; 2. Alleges the delivery of the raisins at the request of defendants; that they afterward sold the same, and that the reasonable value thereof was $7,650,*234 no part of which has been paid except’$4,090.82; 3. Alleges the delivery of the raisins to defendant upon an agreement that they would pay plaintiff three cents per pound therefor.
Defendants answered, specifically denying most of the material allegations of the complaint, but admitted the delivery of the raisins and alleged that they were so delivered “to be handled, marketed, and sold by said defendants upon commission, and as the agents and representatives of plaintiff, upon commission”; in an amended answer defendants set up a contract in writing, dated May 11, 1894, between one G. W. Taft and defendants, under which it is alleged that the raisins were delivered to defendants, and not otherwise. This contract provided, in brief, that defendants were to receive the raisins in the sweat-box, and pack and otherwise prepare them for market and sell them upon a commission of five per cent of the proceeds of this sale.
1. Defendants allege error in refusing their motion to compel plaintiff to elect. In the first count or cause of action plaintiff alleges delivery to defendants as commission agents under a specific agreement by defendants to make returns of proceeds at a given price; the second count is laid on quantum valebat; the third count alleges an agreement to sell and deliver for a given price. Plaintiff upon such complaint was not obliged to elect. (Code Civ. Proc., sec. 427; Cowan v. Abbott, 92 Cal. 100.)
2. It is claimed that “the evidence is insufficient to sustain the allegation that defendants agreed that plaintiff would receive from defendants three cents a pound for each pound of raisins delivered.”
It appears from the testimony of Taft that he was the agent of plaintiff and disposed of the raisins for plaintiff. He testified that he - spoke to William Forsyth, one of defendants, in May, 1894, about raising some money on plaintiff’s crop, and was told that defendants would supply what money they wanted if defendants were allowed to handle the crop; witness replied: “I will give you a show at it if you will do as well by me as anybody. He says, 'All right: we will give you the $2,000 and take a crop mortgage on the crop’ ”; the crop mortgage was drawn and is dated May 14th, and witness sent it to plaintiff
3. Defendants offered in evidence the contract set forth in the answer, but the court excluded it, and defendants excepted and claim that the ruling was error. As this evidence tended to show an entirely different agreement from any claimed to have been made by plaintiff, it becomes important to determine whether the court erred in refusing the evidence.
Defendant Forsyth testified as to the advance of $2,000, secured by mortgage, and, continuing, said: “At that time and place certainly there was something said about the execution of some papers by myself and Hr. Taft. He was to indorse the Estrella Vineyard Company’s note for $2,000 after he had signed the contract. He went with me to the office of Butler and Forsyth and signed the contract that day. [Paper handed witness.] That is the contract Hr. Taft signed on the eleventh day of Hay. That is George W. Taft’s signature; I saw him sign it.” Plaintiff objected to the admission of the contract as irrelevant, immaterial, and incompetent, and on the further ground “that it purports to be an indenture of mutual covenants, and that it was not executed by the party defendant; that it has never been delivered.” The witness continued: “There must have been two papers signed at that time. There is generally the duplicate and this .one. My signature, I presume, was on the other one, the signature of Butler and Forsyth. There were two papers. I handed one to Hr. Taft and kept the other. They were identical. It was an oversight I didn’t sign this paper before yesterday. I didn’t think it was necessary. I had Hr. Taft’s signature on that document, and it was all I supposed was necessary.” The objection was then sustained, and defendants excepted. This agreement is dated Hay. 11, 1894, and purports to be between George W. Taft, of the county of Fresno, and defendants; throughout the contract the party of the first part is Taft, and the conditions in terms are to be_ performed by him on the part of first party, and the agreement is signed G. W. Taft. Forsyth further testified, without objection: “The contract under which I-received those raisins is the
Taft further testified: “If at any time during the month of May, June, or July, and before August 15th, I signed a raisin contract to the Eaisin Growers’ Packing Association, I had no authority to sign it from the company”; and in that connection said: “I spoke this morning of some papers having been drawn and sent down for execution to Bakersfield. They were contracts between Butler and Forsyth and the plaintiff corporation. That was a little after this chattel mortgage was sent down, I think, probably within a week.” The mortgage was dated May 14th. Defendants’ counsel claim that the contract was admissible because: 1. It appeared by its terms to be in duplicate; 2. Taft did not deny that he executed it; 3. Forsyth testified that he saw Taft sign it; 4. That Forsyth said he presumed that the signature of Butler and Forsyth was on the other copy; 5. Forsyth testified that defendants received the raisins under this contract. The general rule, subject to some exceptions, is that in order to bind the principal, and to make it Ms contract, the instrument must purport on its face to be the contract of the principal, and his name must be inserted in it and signed to it, and not merely the name of the agent, even though the latter be described as agent in the instrument; or
4. The trial court admitted evidence of the quality of the raisins under the first cause of action, and generally of their market value at Fresno, and these rulings are assigned as error. Taft testified that the agreement called for raisins of good quality, and we think it was competent to show that they were such. As to the evidence of market value at Fresno, we think it was admissible. The evidence tended to show that the raisins were sold in that market to be delivered at Fresno. Taft testified:
5. The court instructed the jury on its own motion. Thereupon defendants submitted ten additional instructions, all of which the court refused to give, and this is assigned as error. Our attention is invited to the sixth, seventh, tenth, eleventh, fourteenth, and sixteenth. The instructions marked 7, 10, and 14 are clearly an invasion of the prerogative of the jury, being instructions upon questions of fact. The sixth gives the rule as to burden of proof, upon which the court fully instructed the jury. The eleventh instruction refers- to a contract under which the raisins are assumed to have been delivered, but it is impossible to say whether the contract referred to was the contract alleged by plaintiff or by defendant. As offered, the jury could not have been aided by the instruction and might have been misled. , There is no point in the sixteenth instruction not covered by the instructions given quite as favorably as defendants could fairly ask. Indeed, we think the court erred, if at all, in giving instructions under which the jury could render a verdict (as it evidently did) for less than the contract testified to by Taft would have warranted.
It is advised that the judgment and order should be affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Temple, J., Henshaw, J.
Hearing in Bank denied.