Brzezinski v. Lakeside Packing Co. ( 1925 )

Doerfler, J.

The plaintiffs having established the oral contract,- and the defendant having admitted the same on the trial, leaves for our consideration solely the issue formed upon the counterclaim. The only significance that can be -attached to the answer of the jury to- the sole question submitted to it in the special verdict is the.fact that the jury found that the plaintiffs could not comply with the written contract to the extent of furnishing 294 casks of field-run pickles. If the plaintiffs could not furnish 294 casks of such pickles, manifestly they could not furnish the 300 casks specified in the written contract. The figure 294 was not warranted under any view which the evidence presents. Defendant’s counsel and the court evidently were of the mistaken opinion that the sum total of the 140 casks and the 151 casks amounted to 294 casks, whereas in fact it amounted to but 291 casks. To properly meet the issue the inquiry should have been made to the jury requiring them to find the number of casks which the plaintiffs could supply in the fall of 1923, of the contract-size pickles. Defendant’s counsel, however, have little reason to complain of the form of the question actually submitted, because they drafted the question and requested its submission.

The court found that the 151 casks delivered under the oral contract contained pickles that were taken from the vat-run pickles by the machine re-sorting process, and that they were therefore of a vat-run and not of a field-run pickle. Julius Brsezinski, one of the plaintiffs, testified in substance that the farmers sort the pickles; that they are not measured with a tape line or rule; that under the usual practice, pickles of a trifling larger size than three and one-half inches are included in the vat run; and that the pickles constituting the 151 casks .were obtained by the machine re-sorting process out of the vat-run pickles. He also testified that at the time of the oral contract he notified Smalley, the representative of the defendant, that the 151 casks were taken from the vat run, and were therefore vat-run pickles. This view was adopted by the court in its opinion, and judgment was ordered in plaintiffs’ favor in accordance with the prayer of the complaint. The conclusions arrived at by the court as to the 151 casks are amply supported by credible evidence. Plaintiffs’ testimony also shows that the pickles furnished as 1,800 and 1,900 count to the cask, in reality showed a count of 2,100; that those sold and delivered as containing a count of 1,500 to the cask, in reality were of a much higher count.

The witness Brzezinski, on cross-examination, testified that the 2,100 count pickles to the cask are three or three and one-half inches in size; that those of the 1,800 count are about three and three-fourths inches; that the 1,000 count are about four and three-fourths to four and one-half inches; that the 1,200 count are about four and one-half inches; that the 1,500 count are about four inches; that the only contract plaintiffs had for field-run pickles was the written contract with the defendant; that in addition to the 291 casks actually furnished, plaintiffs had on hand thirty-one casks of the 1,000 count; fifteen casks of the 1,200 count; thirty-two casks of the 600 count; five casks of the 1,600 count, and seven casks of'the 1,800 count. All of these pickles were derived from the 1923 acreage. No testimony was introduced as to the size of the 600 count per cask pickles. So that, from .plaintiffs’ own testimony, it appears conclusively that the plaintiffs had on hand, in addition to the 140 casks of pickles furnished under the written contract, fifty-eight casks that answered the description of field-run pickles. These fifty-eight casks do not include the thirty-two casks of the 600 count, because there is no evidence in the record to show the size of these pickles.

At the time when these fifty-eight casks of pickles should have been delivered under the written contract, the market price of such pickles, owing to the scarcity of the crop, had risen to $18 per cask, thus leaving a difference of $7 per cask between the contract and the market price, which represents the defendant’s damage for plaintiffs’ breach of contract, and for which it should be allowed the sum of $406; and offsetting this amount from the total due the plaintiffs, namely, the sum of $3,054.18, under the oral contract, leaves the sum of $2,648.18, for which the plaintiffs are entitled to judgment against the defendant, with the costs as taxed in the lower court.

In the argument before this court counsel for the plaintiffs argued that the oral contract constituted an accord and satisfaction. The record does not disclose that such contention was máde in the trial court, and the only reference thereto is contained in the opinion of the- court. The trial court does not pass upon this question, but merely suggests that the oral agreement might possibly constitute a wáiver of defendant’s right to damages for breach of contract, or that it may amount to an accord and satisfaction. From the evidence it appears that the plaintiffs notified the defendant that they could not furnish in excess of 140 casks of the pickles provided for in the written contract; Under these circumstances the defendant recognized the claim of the plaintiffs of inability to further perform. Plaintiffs made their concession of $2 per cask on the better grade of pickles, which were sold as 1,800 and 1,900 count, and the defendant accepted plaintiffs’ proposition believing and with the understanding that the 140 casks were the only pickles which the plaintiffs could furnish and deliver and which complied with the written contract-size pickles. It also appears conclusively from the statement of the witness Brzezinski that his consent to the come-down to the price offered by the defendant was actuated by his desire to do further business with the defendant. Plaintiffs’ testimony, however, clearly establishes beyond controversy that, in addition to the 291 casks furnished under the two contracts, they had on hand 58 casks of pickles which answered the call of the pickles specified in the written contract. While plaintiffs, therefore, could not supply the full quota of 300 casks of field-run pickles, they could, in addition to the 140 casks, have furnished the additional 58 casks. The evidence, therefore, does not support the claim of accord and satisfaction. Besides, an accord and satisfaction must be pleaded and the issue'thereon must be tried. 1 Ruling Case Law, p. 202, title “Accord and Satisfaction,” § 40.

By the Court. — The judgment of the lower court is modified in accordance with this opinion, and as so modified affirmed. The defendant is entitled to its costs and disbursements on this appeal.