120 P. 433 | Cal. Ct. App. | 1911
In this action plaintiff had judgment for an amount of money which constituted only a small part of the sum demanded. He appeals from an order denying his motion for a new trial.
On November 26, 1909, the plaintiff, who was the owner of an olive orchard located at Sespe, in the county of Ventura, California, made a contract to sell the crop of olives then growing upon the trees to the defendant. A written contract was signed by the parties at the time which expressed in brief form the agreement of Kenney to sell and Grogan to buy the olives, it being stated therein that the purchase was made "at the same prices, conditions, and terms as the Olive Growers' Association of Santa Barbara." The prices, conditions and terms, as expressed in the Olive Growers' Association contract referred to, were as follows: "Prices f. o. b. nearest shipping point: $50 per ton for all oil olives (picholenes excepted) when shipped in less than carload lots, and $52 per ton when shipped in sufficient quantities to secure carload rates, $100 per ton for all pickling olives that will run 11/16 in. diameter and larger. Pickling olives to be picked when black and red, and oil olives to be picked when ripe enough to yield an average amount of oil. Payments: 1/2 of the purchase price of olives will be paid on demand as fast as they are delivered, and the remaining 1/2 will be paid 30 days after the completion of the delivery."
As testified to by the plaintiff, and not denied by the defendant, at the time the contract was entered into all olives *529 on the trees were then nearly ripe and about full grown. The first shipment of oil olives was made by the plaintiff to the defendant on January 10, 1910, consisting of 3,640 pounds; on January 17th following, 13,500 pounds were shipped, and thereafter, on February 7th, February 24th and February 25th, additional of the oil olives were forwarded by plaintiff to defendant, at which last-mentioned date shipments ceased, the entire crop having been picked and transported. The total weight of the olives furnished was 37,938 pounds. In addition to the oil olives, pickle olives valued, according to the contract price, at $10.58 were furnished. The contention of the defendant was, and which the trial court by its judgment sustained, that none of the oil olives furnished by the plaintiff were merchantable; that defendant had refused to accept the fruit for that reason. The particular findings of the court which were responsive to this issue, read as follows: "That the defendant did not accept said olives, but notified the plaintiff that he would make them into oil for the plaintiff and hold the said oil subject to plaintiff's order. That the said olives so shipped were badly frosted, were soft and pulpy, and were not of a merchantable quality and could not have been returned by defendant to plaintiff except at a total loss of said olives, as they would not bear reshipping, and that defendant made the same into oil for the purpose of diminishing the plaintiff's loss, and that the oil produced from said olives is of a very inferior quality, and that there is no regular market price for olive oil of such poor quality."
There are but two questions, as we view the case, presented for consideration: First, whether there was implied from the conditions of the contract made between plaintiff and defendant any warranty that the olives when delivered to the defendant should be of merchantable quality; and, second, whether, assuming that such a condition is to be implied, the evidence was sufficient to warrant the court in determining that the olives furnished were not of merchantable quality. It may be assumed in considering these questions that the evidence is sufficient to show that the defendant protected himself by sufficient notice to the plaintiff of his determination not to accept the olives proffered in fulfillment of the contract, and that his acts, as shown by the testimony, with reference to his having manufactured the olives into oil, would *530
not estop him from denying that he had made such an acceptance. It appears quite clear from the testimony that the oil olives when delivered to defendant had been affected by frost. As to the time when they became so affected, whether before or after the making of the contract of purchase by defendant, cannot be told from any of the testimony as it is set out in the bill of exceptions. The defendant, by his own testimony, qualified himself as a man of much experience in the handling of olives and the manufacturing of that fruit into oil and pickles. It is a fair inference from the testimony, while it is not expressly so shown, to conclude that the defendant examined the crop of olives before he made the contract of purchase, for it does not appear that he had not the opportunity of so doing, and it does appear that at the time the contract was made the crop was in an almost mature state. In the language of plaintiff, "the olives were nearly ripe and about full grown." Assuming, however, that the damage done to the crop by frost occurred after the making of the contract and before the fruit was delivered to defendant, the question presents itself as to whether, under the circumstances of the case, the defendant is entitled to claim the benefit of any of the sections of the Civil Code relating to warranty of condition of personal property upon sale thereof. One of the contentions of appellant is that the contract or agreement of sale had the effect of transferring title to the olive crop immediately upon the execution thereof. If such is the case, then, where plaintiff was chargeable with no negligence in the handling of the crop, any loss occasioned by reason of damage thereto by frost would be the loss of the owner, the defendant, and not the vendor. But as we interpret the contract, it was not such a one as contemplated the immediate passing of title to the olives. The crop was then not in a state to be delivered, and not only was it to be left upon the trees until it had become sufficiently mature, but also the vendor was required to pick, pack and deliver it at the shipping point to the carrier. Under conditions of this kind, it is well established that title to merchandise so sold will not pass until delivery is made. (Walti v. Gaba,
The order is reversed.
Allen, P. J., and, Shaw, J., concurred.