Plaintiff and respondent instituted this action to recover damages against defendant and appellant corporation for breach of contract respеcting the sale of respondent’s crop of oranges. The case was tried without a jury and resulted in a judgment for respondent in the sum of $637.93, from which judgment defendant has apрealed.
During the first part of November, 1937, respondent, an orange grower, owned about five acres of full-bearing trees on which there was growing a crop of Washingtоn navel oranges. Both respondent and appellant corporation (which corporation was engaged in buying, shipping and packing citrus fruit) were quite familiar with the orange industry and market. On November 5, 1937, appellant, through its agent Mr. King, entered into an agreement of sale for the crop of navel oranges on the trees. This sale was consummated in writing on a printed form of contract prepared by appellant after the oranges had been inspected by the appellant. It reads in part as follows:
“ . . . the Seller (respondent) has sold and the Buyer (appellant) has bought the entire crop of Wash. Navels now growing and maturing on Tillis Grove, . . .
“The Buyer agrees to pay the Seller 2%^ per lb. up to and including Nov. 7th, 2<j> per lb. up to and including Nov. 12-1937. . . .
“It is further agreed that the picking and hauling are to be done at such time and manners as directed by the Buyer and the expense of the same is to be borne by the Seller . . .
“ . . . Fruit to be paid on receipt of weights . . .
“Estimated boxes 2000.”
The evidence discloses that on the 5th day of November, 1937, the date the sale was consummated, appellant harvеsted from the premises 14,190 pounds of oranges for which appellant paid respondent the contract price of 2y2$ per pound; that on November 5, 1937, the entire crop of oranges then growing upon the premises of respondent was ready and suitable for harvest and marketing, both as to sugar content and color; that on thе 11th day of November, 1937, when the remaining oranges were still ready for harvest and marketing, *829 and would still pass the government test, the appellant refused to accept thе balance of the oranges and informed the respondent that it would not accept any more of them. The appellant appears to have refusеd to take the balance of the oranges because the market price had broken. Immediately after such refusal, the respondent, in order to mitigate his damаges, shipped and sold the balance of the oranges through a growers ’ exchange. The oranges sold through the exchange amounted to 50,423 pounds, and after deduсting costs of picking, hauling, and selling, brought the sum of $370.53.
The court found from the arithmetic involved that respondent suffered damages in the sum of $637.93, being the difference, figured at 2$ per pоund, between the contract and the actual selling price of the oranges.
It is appellant’s contention that under the contract it agreed to pay cеrtain specified premium prices for that portion of the crop which the appellant could and did accept and use during the first week of the navel orаnge season in that year; but that the appellant did not thereby obligate itself to pay the same premium prices for any remaining portions of the crop which might have been, but which never were delivered to the appellant, and that it especially reserved the right to specify what portions of the crop it would acсept and pay such premium prices for, by expressly reserving the right to direct the time when and the manner in which the fruit was to be picked and delivered to it; that this construction is amply supported by the language of the written contract in question and also by conversations between the parties, which conversations both preceded and followed the execution of the contract, and by the construction placed upon the contract by the parties thereto.
Appellant also contends that it was unduly limited by the trial court in not allowing extrinsic evidence of certain conversations as bearing on the intention of the parties as to the constructiоn of the contract.
The record does disclose the fact that counsel for appellant endeavored to produce certain testimony to the еffect that the contract was intended to be that a premium price was to be paid for early season fruit. With some emphasis the trial court denied the right of appellant to pursue such a course. However, the record does disclose that appellant was later allowed to bring out practically all the evidеnce sought to be
*830
produced and also conversations both before, after, and surrounding the execution of the contract. Appellant cannot now be heard to complain of the trial court’s ruling in this respect.
(Rapolla
v.
Goulart,
The contract further provides that the “picking and hauling are to be done at such time and manners as directed by the Buyer ...” The evidence discloses that King, buyer for Western Fruit Growers, Inc., agreed with the respondent to secure the pickers (most of whom were men regularly employed by appellant corporation) to pick the oranges because he could “get it done cheaper”. On Novembеr 5, 1937, 14,190 pounds were picked and paid for (less hauling and picking charges). No further picking was done or directed to be done by the buyer. On November 11, 1937, respondent went to appellant’s place of business and inquired as to why the rest of the fruit had not been picked and he was told: “I am not going to pick any more of that stuff . . . the fruit market is broken.” Rеspondent then sold the balance of the crop to the exchange. Appellant never demanded the balance of the fruit nor did respondent tender it to аppellant.
There was no legal duty resting upon respondent to tender the oranges to appellant, as contended by it, before a cause of action arose. Appellant could not remain silent and then profit by its own wrong.
(Danielson
v.
Neal,
164
*831
Cal. 748 [
It is' a familiar rule that where a contract has been reduced to writing the instrument measures the rights, duties and obligations of the parties.
(Harding
v.
Robinson,
It has been clearly held that if the buyer of a crop of fruit, as in the instant case, refuses to accept and pay therefor, the seller may sue him for breach of his contract and recover as damages the difference between the рrice agreed to be paid by him under the contract of purchase and that realized from the sale of the fruit in open market at current rates. (Cutting Packing Co. v. Packers’ Exchange, supra.)
The trial court hаs fully considered the terms of the written contract. Its interpretation thereof is a reasonable one. Under these circumstances an appellate court will not interfere with such a construction.
(Tide Water Associated Oil Co.
v.
Curtin,
41 Cal. App. (2d) 884 [
Judgment affirmed.
Barnard, P. J., and Marks, J., concurred.