196 P. 277 | Cal. Ct. App. | 1920
Action to recover damages resulting from breach of warranty. The defendant appeals from the judgment.
The action is based upon a contract dated February 28, 1912, which, as written, was entered into between the defendant as party of the first part and E. J. Wilson and J. P. Firth as parties of the second part. It was provided therein "that the party of the first part agrees to sell and the parties of the second part agree to buy nine hundred and ninety-six (996) Valencia orange trees, running in size 1/2 inch and up, said trees grown by O. M. Bert, near his pumping plant. Price to be paid for trees, One, twenty-five cents ($1.25) f. o. b. trees to be balled and scrubbed and defoliated delivered f. o. b. in good condition and to pass inspection before shipping." It will be noted that the action is brought by Firth and Wilson and by George H. Bradley as copartners. It was alleged in the complaint that the plaintiffs are, and at all times mentioned therein were, copartners doing business under the firm *547 name and style of the Dry Bog Orange Company, and that they had filed with the county clerk of Tulare County the certificate required by sections 2466 and 2468 of the Civil Code, and have in all other respects complied with the provisions of said sections of the Civil Code; that the plaintiffs, as such copartners, are, and at all of said times were, the owners of certain described real property in the county of Tulare, which land was specially adapted to the growing of citrus fruits; that said agreement was made for and on behalf of and as the agreement of all the plaintiffs as copartners, and that the trees to be purchased under the terms of the agreement were purchased for the purpose of planting same upon said real property; that under the terms of said agreement the defendant delivered to the plaintiffs 996 orange trees which were accepted and paid for. It was further alleged: "That at the time of the delivery of said orange trees by said defendant, the said defendant represented said trees to be Valencia orange trees as provided in said contract hereinabove set forth, and that said plaintiffs accepted said orange trees relying on the representation of said defendant that they were Valencia orange trees. That at the time of the delivery of said orange trees it was impossible to tell or determine what kind of oranges said trees would bear, and that the said plaintiffs accepted said orange trees and planted all thereof upon the real estate hereinabove described, relying upon the contract hereinabove set forth and upon the representation of said defendant that said trees were Valencia orange trees; that the plaintiffs did not know and had no means of ascertaining whether or not the trees were of the kind as ordered by them and as represented by the defendant at the time of their delivery, and that the said plaintiffs in accepting said trees and in planting the same upon said real property relied upon the terms of said agreement and upon the warranty and representation of defendant that all of said orange trees were Valencia orange trees." Further facts are alleged to the effect that in the fall of 1915 a part of the trees for the first time bore fruit, and in the fall of 1916 the remainder of the trees for the first time bore fruit, at which time it was for the first time discovered and for the first time became possible for the plaintiffs to discover that 183 of said trees were navel orange trees and not Valencia *548 orange trees. Further facts are alleged showing the damages incurred. The findings of the court correspond to the allegations thus made. The amount of damages awarded and the method of measuring such damages are not attacked by appellant; his claim being that he is not subject to any liability whatever.
The action was commenced on the twenty-fifth day of February, 1918.
[1] By demurrer to the complaint and by objections made at the trial and now renewed, appellant insists that there is a misjoinder of parties plaintiff, and that George H. Bradley is not a proper party plaintiff. We think that there is no merit in this objection. "As a rule a suit on a transaction in the name of the individual partner but for the firm's benefit may be brought, either by the party appearing in the transaction as the sole plaintiff, or, under the doctrine of undisclosed principal, by all of the partners." (30 Cyc. 563.) This is in harmony with the requirements of the Code of Civil Procedure to the effect that (with exceptions not necessary to note here), every action must be prosecuted in the name of the real party in interest and that all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs. (Code Civ. Proc., secs. 367, 378. See, also, 20 Ruling Case Law, 921.)
[2] Counsel for appellant in his brief has contended that there is no warranty shown by the evidence in this case. Counsel for respondents dispose of the argument that there can be no implied warranty by denying that respondents place any reliance on an implied warranty, but do claim that the terms of the contract are such that, since they provide for a sale of the trees by description as Valencia orange trees, the defendant thereby expressly warranted not only that they were Valencia orange trees, but that they were trees which would bear fruit of the kind known as Valencia oranges. The position thus taken by respondents appears to be sustained by authority in this state. [3] Where the circumstances are such as to amount to a representation of fact on the part of the vendor that an article sold is of a particular kind or description, as, for instance, where the buyer in terms asks for a particular kind, and the seller purports to comply with his request, it was said *549
that "he would probably be held to warrant the article as being of that kind, although he may not have made any declaration in words to that effect." (Rauth v. Southwest Warehouse Co.,
[4] Appellant next contends that the action having been commenced more than four years after the time when the contract was made and the trees delivered, it was barred by the provisions of the statute of limitations. It is an action upon a contract in writing executed within this state. (Code Civ. Proc., sec. 337, subd. 1.) It is admitted that the time limited begins to run from the time of the breach of the contract. If the warranty in question was broken immediately when the trees were delivered (they being other than Valencia orange trees), and if the warranty was limited to the fact that they were then and there Valencia orange trees, then this action was commenced too late and the plaintiffs cannot recover. It has been settled by decision in this state that a warranty of the kind here in question is not limited to the present fact that the trees *550
are of the description given, but it is further a warranty that the trees will bear the kinds of fruit corresponding to such description. (Shearer v. Park Nursery Co.,
The judgment is affirmed.
Shaw, J., and James, J., concurred.