130 Cal. App. 2d 119 | Cal. Ct. App. | 1955
Respondent San Joaquin Valley Tomato Growers Association, a corporation, hereinafter called “Growers,” M. V. Acosta and A. Dumpit joined as plaintiffs in an action brought to recover damages alleged to have been caused by breach of three several contracts for the purchase of tomatoes. Defendants, appellants here, moved the court for an order staying the action until arbitration had been had. Respondents claimed there were no agreements for arbitration and this issue was heard upon affidavits and oral testimony. The court, sustaining them, denied the motion for stay. Thereafter the cause was tried on the merits. Several judgments were rendered in favor of plaintiffs and the defendants appealed. The sole issue presented on appeal is whether or not the trial court erred in refusing to stay the action until after arbitration.
We shall first consider the trial court’s conclusion that the
The complaint contains three counts, each having to do with a separate cause of action of one of the parties plaintiff. The Growers’ count pleaded the contract in substance, but omitted any mention of the arbitration clause as being a part thereof. It quoted paragraph V of the contract reading as follows: “Buyer will furnish at no cost to Seller picking boxes for the said canning tomatoes and agrees to furnish said boxes on time; and should Seller incur any losses due to the failure of Buyer to furnish said boxes on time then, and in that event, Buyer agrees to reimburse Seller for said losses.” It was alleged that Growers had performed its contract obligations, but that on or about October 4, 1951, and thereafter Herschel had failed to deliver picking boxes, thereby causing Growers’ crops to be lost, except as to tomatoes theretofore delivered. The damage from this loss was alleged to be upwards of $46,000. Filing and service of the suit papers was followed by the motion to stay for arbitration. Thereafter, its motion being denied, Herschel answered the complaint and the ease was tried on its merits, resulting in the judgment appealed from.
We may dispose now of a contention by respondent Growers that because the answer of Herschel did not assert the arbitration clause as being part of the contract it cannot now successfully urge that the trial court erred in denying its motion for stay. The claim is untenable. Herschel had promptly asserted its right to arbitrate in the manner pro
Herschel contends that the arbitration provisions typed on the last page of the contract and signed and initialed by Miguel and Giobetti, as we have recited, became a part of the contract and bound the parties to arbitrate. They support this claim, first, by arguing that Miguel, the secretary of Growers, was an executive officer, was a general managing agent, was authorized to execute contracts, and equally authorized to execute the arbitration provisions for Growers. They point to testimony of Giobetti that he had dealt with Miguel before the meeting at Herschel’s with Iannacone, had discussed the proposed contract with Miguel and that, in fact, most of his negotiating discussions were with Miguel who, said Giobetti, had more or less acted as a spokesman for Growers. Giobetti further testified that he had these discussions before the contract was typed up by Growers’ attorney; that when the amendment had been made as to the manner of payment Miguel had given to Herschel a letter purporting to authorize Herschel to advance $20 per acre to a number of growers whose crops were covered by the contract. The letter stated: “The above advance shall be deducted before payments are made to the individual growers.” The letter was signed, “San Joaquin Valley Tomato Growers, by S. R. Miguel.” But the proof herein that Miguel had authority generally as a principal executive officer or as a general managing agent to execute contracts or amendments thereto for growers rises no higher, in view of evidence to the contrary, than to present to the trial court an issue of fact as to whether or not he possessed such authority. Under the by-laws of Growers he could not alone execute contracts for it. It was provided that contracts must bear the signature of both the president and the secretary. Also the affidavit of Dacanay was to the same effect. And the court had before it the fact that both the contract and the
A closer question, however, is presented as to whether or not he had actual authority to bind Growers by executing this particular contract so as to provide for arbitration. These facts support Herschel’s contentions that he had. It is shown that Dacanay was the president of Growers and its general managing agent; that he had been requested to go to the meeting with Herschel where an effort was to be made to obtain Herschel’s consent to the amendment of the contract as to the manner of payment. He did not go, but at least must be charged with having permitted Miguel to go to that meeting, carrying the contract with him, which bore on its face a proposed change concerned with Herschel’s meeting any general price increase, and also bearing with him the proposed amendment as to payment. That meeting was primarily held at Growers’ request. It wanted the contract amended. Undoubtedly as to the formal amendment about payments Growers were representing to Herschel that Miguel could deal on that issue. The case is not so clear, however, as to the proposed amendment as to price increase. Material also is the fact that, having been so entrusted with the contract instruments, Miguel presumably kept them in his possession until some six months later when they were given to Growers’ attorney. It could be inferred that other officers of Growers knew of the attempted incorporation of the arbitration provisions, and by saying nothing and acting on the contract they acquiesced in and ratified the provisions for arbitration. We think it must be said that had the trial court found that the arbitration clause had been made a part of the contract its finding would have been upheld upon appeal. However, that is not the issue before us. The trial court’s order must be sustained unless there is no support therefor in the record and such, we think, is not the situation presented. Giobetti, who certainly acted for Herschel throughout, knew that Growers’ attorney had prepared both the contract and the proposed amendment thereto and that they had been executed by both the president and the secretary. He had prepared a contract on a Canners League form and, for some reason not clearly disclosed, it was not used and a special contract was prepared. The trial court could con-
Respondents Dumpit and Acosta received judgments and the sole issue on appeal is again that of whether or not their contracts contained arbitration provisions. Both contracts were on Canners League forms and on each the provisions on the back of the form, which provisions included both the obligation of the buyer to furnish boxes and the agreement of the parties to arbitrate controversies, had been so marked by Giobetti as to indicate that all the provisions on the back of the form had been stricken as constituting any part of the contract to buy and sell. We have already described the way in which Giobetti had first prepared a Canners League form of contract for Growers and the way in which he had apparently marked out all the matter appearing on the back of the form. The same action had been taken by him in preparing Acosta’s contract, which was executed on the league
We have stated that the actions of Giobetti with respect to the provisions on the back of the contract forms furnished sufficient evidence of intent to sustain a conclusion by the trial court that none of the provisions on the back of the forms constituted any part of the contract. The court’s holding that there was no agreement for arbitration by either Dumpit" or Acosta must be upheld. There was very little testimony directed to the subject. Neither Dumpit nor Acosta testified on the hearing of the motion to compel arbitration nor did either of them make any affidavit for the court’s use. Giobetti testified that he made the crossed lines on the back of the contract forms and wrote the word “Void” over his signature thereon because of some objections on the part of Dumpit and Acosta concerning the charge for boxes and because the forms contained many provisions concerning grading of the tomatoes not contained in the association’s contract. But this testimony does not explain why it was that Giobetti did not merely mark out those provisions instead of purportedly marking out all provisions on the back of the form. On the whole record we find that there was again a factual issue presented to the court as to whether or not there were any agreements for arbitration of the Dumpit and Acosta controversies and substantial support for the trial court’s determination that there were none. It follows, therefore, that the judgments in favor of Dumpit and Acosta must also be affirmed.
The judgments appealed from are all affirmed.
Peek, J., and Schottky, J., concurred.