California Fruit Canners Ass'n v. Henry Lochte Co. , 10 Teiss. 58 ( 1913 )

His Honor

HORACE L. DUFOUR,

rendered the opinion and decree of the Court as follows:

The defendants, in May, 1908, entered into a written contract with Gordon & Co., plaintiff’s local agent, for the delivery of 550 cases of white asparagus of five separate and different grades and brands with a distinct price 'specified for each.

The contract provided that “in case of damage to or shortage of crop by reason of which seller is unable to make full delivery of any of the grades specified, it is mutually agreed that deliveries are to be prorated.

When, pursuant to the contract, the plaintiff tendered the goods, defendant refused to accept them on the ground that the asparagus was not white and of the quality and value agreed upon, but was green and of an inferior grade.

Alter submission of tbe cause, tbe defendant moved to re-open tbe ease and bear further testimony on tbe ground that tbe small white asparagus and particularly the tips “are so much in demand and are so important in any order of which a part consists of white tips that the greenness of tbe latter makes valueless tbe whole order.”

Tbe motion also suggests, and tbe statement is supported by various affidavits, that, according to tbe custom of tbe trade, to accept tbe larger sizes and reject tbe tips would mean that tbe latter could not.be purchased to tbe extent herein contracted for unless some of tbe larger white asparagus was also ordered.

Tbe Judge ordered tbe case to be re-opened and when evidence to sustain tbe motion was tendered, it was objected to by counsel for plaintiff as inadmissible because in conflict with tbe express terms of tbe contract in this case.

In maintaining the objection, tbe Judge said that testimony could not “do away with tbe absolute conditions set forth in tbe contract itself which sets forth that if there is a deficiency or for any other reason mentioned that it should be prorated. * * * Tbe legal question involved (is) whether tbe contract was an entirety or separable. * * *”

In bis reasons for judgment tbe Judge said:

“Conceding.that part of tbe goods were up to tbe contract grade, i. e., white, as to which to say tbe least there is doubt, yet I do not find tbe contract’ separable.

“There is not satisfactory proof that damage to or shortage of crops prevented tbe plaintiff from delivering tbe grade of asparagus ordered and con-tractefl for by defendant * * * and damage to or ■ shortage in the crops was the only condition on which delivery of the goods conld be prorated. I therefore hold that the contract was for an entirety and that failure of a material part of the goods to come np to contract standard operated the failure of the entire contract.”

In this conclusion we do not agree with the District Judge.

The objects to 'be delivered in execution* of the contract were susceptible of division, being different brands of asparagus at different prices, they were distinct objects of distinct considerations, and there is nothing to indicate that the use of any one of them is'dependent on any other.

The sale was not for a gross price and the consideration was separately fixed for each set of objects.

R. C. C., 2108, 2109; 35 Cyc., 115, 116.

We do not understand the clause as to damage to or shortage of crops to mean any more than that, in such contingency, the quantity raised should be prorated among the total number of customers in proportion to their respective orders.

We are unable to find anything in this proviso which changes the character of the obligation from a divisible to an undivisible one.

It follows that the failure of a portion of the goods to come up to contract does not justify the rejection of the whole order, and that the status of each grade must be ascertained from the evidence.

Counsel for plaintiff frankly states that he does not hope to reverse the finding-of fact as to the grade about which the testimony is conflicting, but he claims that except as to the grade “Old Fort” and “Columbus White Tips,” the evidence is overwhelming that the asparagus furnished was white.

There is some testimony as to the tendency of asparagus to bleach or fade in the cans owing to the salt and the preservative acids used and to lapse of time. "We think that the proper time for the test as to the condition of the articles was in 1908, the time of delivery and not 1911, the date of trial and the time at which the examination of the cans was made in open Court. Some of the witnesses for plaintiff who made the examination on that occasion say that the asparagus were such as is known to the trade as “white.”

Pfister bought some of the “Gold Medal” brand as white but was compelled to re-sell them.at a loss as green. Thompson says that the “Export” brand as well as the tips contained too much green. Martin Frank says that when the cans marked “white” were cut, three-fourths of the contents were green. Others testify in the same strain.

Eliminating the testimony of the parties in interest, the seller and their agents on the one side and the purchasers on the other, we are unable to find that unanimity of opinion suggested by plaintiff’s counsel.

In this condition of the evidence we are assisted in reaching a conclusion by the terms of the following telegram sent by Bently, plaintiff’s sales agent in California to its agent here; “Loehte’s rejection unwarranted, the goods will bleach in the cans, expect you' to protect our rights.”

The statement that “the goods will bleach in the cans” is equivalent to an ádmission that they were not white at the time. There is an effort made to show that the telegram referred to “Old Fort” and “White Tips” only.

Ldchte had rejected the whole shipment and his complaints were as to all the five brands. Bently, Miller and Grói’don were examined as witnesses and offered no explanation whatsoever; their failure to do; so presumably results from inability and we may safely infer that they did not because they could not. •

Opinion and decree, January 27th, 1913.

Our examination of the record leads us to affirm the judgment.

Judgment affirmed.