110 P. 1088 | Cal. Ct. App. | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *34 The complaint was for the balance due on a contract for the sale of certain oranges by plaintiffs to defendant. The answer does not deny the execution of the contract set out in the complaint, but, by way of counterclaim, presents an offset for labels furnished by defendant to plaintiffs. There is also a cross-complaint for damages caused by plaintiffs' failure to furnish as much fruit as the agreement called for. Plaintiffs admitted the allegations in reference to the labels, but took issue with the cross-complaint. The action *35 was tried before the court and judgment was rendered in favor of plaintiffs, findings having been waived.
The claim for damages on the part of defendant is based on the contention that plaintiffs furnished only nine carloads of fruit of the quality prescribed, whereas they agreed to sell "twenty cars of seedling oranges, more or less," and that, relying upon said agreement, defendant contracted with its customers for the sale of fifteen carloads. The deficiency, so it is claimed, was supplied at an additional expense to defendant.
We think there is no merit in the contention that the complaint fails to state a cause of action. The position of appellant in that respect is that the complaint attempts to state a cause of action on a contract for an agreement to sell and deliver twenty carloads of fruit, which contract respondents claim they fulfilled by delivering nine carloads and no more. But this view ignores the allegation "that said defendant received and accepted all of said nine carloads of oranges so sold and delivered to it by plaintiffs as aforesaid." If plaintiffs did furnish less than the contract called for, yet defendant would be liable for the value of the nine carloads which it received and accepted, subject, of course, to the right of defendant to set up a counterclaim for damages, if any, caused by the failure of plaintiffs to comply fully with the terms of the contract. Manifestly plaintiffs, in their complaint, are not required to anticipate any such claim on the part of defendant. In Polhemus v. Heiman,
In Willamette etc. Co. v. Union etc. Co.,
The main reliance of appellant for a reversal, however, seems to be upon the position that the judgment is unsupported by the evidence. It is urged that it appears without conflict that defendant, by reason of plaintiffs' failure to comply with the contract, suffered loss as alleged in the cross-complaint. It does indeed appear that defendant, in order to fill its contracts with other parties, incurred a greater expense than if it had received all of the fruit from plaintiffs at the price agreed upon. But were plaintiffs responsible for this additional expense? The evidence shows that defendant sold to its customers fifteen carloads of oranges. Plaintiffs offered to deliver this number to defendant. It cannot be said, therefore, that plaintiffs are responsible for defendant's loss, at least, unless it was shown that the fruit rejected was inferior in quality to the standard required. The burden of proof as to this was, of course, cast upon defendant, as it was one of the material allegations of the cross-complaint. The only evidence upon the subject was furnished by plaintiffs, and this, of course, must be regarded in the light most favorable to the judgment of the trial court. In the examination of Mr. Hills, one of the plaintiffs, the following questions and answers appeared:
"Were those oranges which were rejected by their inspector of the same appearance, size and quality as the oranges called for by the contract? A. I would consider them so, the majority of them.
"Q. You said they were the same size and quality? A. Yes, sir, that is to all appearances. A person could not tell until after they cut all the oranges open whether they were or not. To all appearances they were.
"Q. Did the appearance indicate anything different from the appearance of the oranges they did take? A. No, sir, I don't think so to my opinion.
"Q. How many oranges were rejected by them? A. We figured we picked fully fifteen carloads of fruit and there was six carloads rejected. Out of that six carloads I think fully *37 four carloads was equally as good fruit as anything they got. All the oranges we had we sold to the defendant."
There was no evidence more favorable to the appellant than the foregoing. It is apparent, therefore, that the trial court was justified in concluding that defendant's inspector acted arbitrarily and unjustly in rejecting six carloads of the oranges and furthermore, that while plaintiffs admitted that some of the oranges were not up to the standard, yet the proportion was very small and the evidence concerning it so indefinite that it could not be said that defendant had established this material allegation of its cross-complaint.
Indeed, considering the whole record, the conclusion is inevitable that the judgment of the court was just, and it ought not to be disturbed unless some plain principle of law requires it. The plaintiffs acted in the utmost good faith and entirely in accordance with the intention of the parties. It is true that the contract was reduced to writing, and called for "twenty carloads, more or less," and the decisions are to the effect that the "addition of the qualifying words 'about,' 'more or less,' and the like, in such cases is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight." (Brawley v. United States,
It is clear that if the pleadings had been properly framed, the court would have been entirely justified in reforming the said written contract so as to express the real intention of the parties and in awarding plaintiffs judgment in accordance with said reformation. As the evidence of said intention was admitted without objection, it hardly becomes appellant now to contend for the first time that the evidence was not within the issues made by the pleadings.
It is not necessary, however, to hold, and we do not hold, that the point cannot be made, as we are satisfied the trial court was warranted in finding that "said defendant received and accepted all of said nine carloads of oranges so sold and delivered to it by plaintiffs as aforesaid, and said defendant paid to said plaintiffs the full amount due therefor under the terms of said contract, excepting only the sum of four hundred and seventy-seven and 82/100 (477.82) dollars, being the price due for the last carload of oranges so sold and delivered to defendant and received and accepted by it under the terms of said contract," and that defendant did not suffer damage "in the sum of three hundred and forty-five and 60/100 ($345.60) dollars, or any other sum or at all by reason of the failure of said plaintiffs to perform said contract, or any contracts or the consequent inability of said defendant to deliver *39 the oranges so sold, or for both of said reasons or for any other reason, or at all."
The foregoing implied findings, together with the admissions of the pleadings, are sufficient to support the judgment.
Appellant calls attention to the ruling of the court in sustaining the objection of respondents to certain questions asked by defendant. But as appellant admits that the conversation called for by the questions "was entirely immaterial and irrelevant," we feel called upon to do no more than to agree with the admission.
The contention of respondents that the specification that "The evidence does not support the judgment in this," etc., is not sufficient to warrant a review of the evidence, need not be considered, as we think upon the merits respondents should prevail.
The judgment and order denying the motion for a new trial are affirmed.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 29, 1910.