Hollywood Orchards Co. v. Dennis, Kimball & Pope

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In Banc. This is a motion to dismiss the appeal. On the twentieth day of February, 1925, the Circuit Court granted the appellant until April 1, 1925, within which to file its transcript. On the thirty-first day of March, 1925, another order was granted extending the time to and including May 1, 1925, within which to file the transcript. The motion calls attention to the fact that there was another order extending the time to June 1, 1925, but that such order was not filed in the office of the clerk of the Circuit Court of Jackson County, Oregon, or otherwise, until May 13, 1925, and therefore it never became effective. The order which was made on April 28, 1925, bears the filing mark of May 13, 1925, and therefore, upon the face of it, it would appear that the appellant is out of court; but the appellant's counsel presents his own affidavit to the effect that on April 28, 1925, he made a special trip to Grants Pass, procured the order on that date, and presented it to the clerk, who received it for filing. If it was actually presented to the clerk on the twenty-eighth day of April, 1925, for filing and received by her for that purpose, it will be taken to have been so filed, even though the filing mark was not placed upon it at the time.

The affidavit of counsel for the appellant is clear and emphatic that he procured the order on the twenty-eighth day of April, 1925, and actually presented it to the clerk for filing on that date. The affidavit of the clerk is to the effect that business in the office is very much congested and that there is an insufficient number of deputies in the office; that it might have been placed among the files of the case on the same day as the date it bears and inadvertently mislaid on the desk and the file-mark placed on it as May 13, 1925, through inadvertence.

The affidavit of Mattie Stevens, deputy clerk, is to the same effect, stating that there is great congestion in the clerk's office with few limited conveniences for the conduct of the office and for the care of instruments that are presented; that often instruments and orders are mislaid; that it is entirely possible and probable that the particular order referred to in this case was, through inadvertence, mislaid at the time it was presented at the office without being formally filed; and that when asked to certify to the transcript, possibly at said time the order may have been found among the files and the filing mark then placed upon it as of the date when it was discovered. She states, however, that there is upon the order, inserted in the filing mark the words "Apri.-28," in the handwriting of another deputy.

In view of the affidavit of appellant's counsel and the admissions by the authorities in the clerk's office, and the possibility and probability of such a mistake having been made, we are inclined to hold that the order was actually presented to the clerk for filing and placed in her custody on the twenty-eighth day of April, 1925, as would seem the natural thing for appellant's counsel to have done after having taken the pains to make a special trip to an adjoining county in order to have it signed by the judge.

The motion to dismiss will be overruled.

MOTION OVERRULED.

ON THE MERITS. (263 P. 66.) This is an action for damages in the sum of $1,328.75 for the breach of a contract. The cause was tried before the court and a jury and a verdict rendered in favor of defendant. From a judgment on the verdict dismissing the action plaintiff appealed.

The plaintiff is a Utah corporation and the defendant is a New York corporation. The plaintiff, as a ground of its action, alleges in substance the following facts: On October 3, 1922, plaintiff consigned to the defendant two carloads of pears consisting of 1,063 boxes at Medford, Oregon, for shipment to London to be sold by the defendant. It was understood and agreed that the pears were to be shipped by the defendant to Portland, Oregon, and plaintiff and defendant agreed that if the steamer, upon which the same should be shipped, was not in Portland at the time of the arrival of the pears, that the pears should be placed in cold storage in Portland, Oregon, until the arrival of the steamer; and plaintiff should allow defendant nine cents per box for the cold storage charges. The pears were shipped to Portland on October 5, 1922, and arrived in Portland on October 7, 1922, about 1 o'clock A.M. That at the time of the arrival of the pears the steamer "Gothic Star," upon which they were to be shipped, had not yet arrived and did not arrive until on or about October 14, 1922.

Defendant failed and neglected to comply with its agreement with the plaintiff to put the pears in cold storage and allowed them to remain on the dock from the date of their arrival, October 7th, to the time when the steamship company proceeded to load them on October 14, 1922.

The pears, when they arrived in Portland, were in excellent condition for shipping from Portland; that because of the fact that defendant in violation of said agreement to place the pears in cold storage, allowed them to remain upon the dock, they became overripe and were not fit for shipment when loaded on the steamer, all of which was well known to defendant and unknown by the plaintiff. The reasonable value of the pears is alleged to be $1.25 per box f.o.b. cars Medford, Oregon. Because of the failure of the defendant to comply with the terms and conditions of its agreement to place said pears in cold storage in Portland as alleged, the pears were entirely lost to plaintiff and the plaintiff received no financial return therefor, as at the time of their arrival in London they were a total loss and were dumped into the ocean. The plaintiff demands judgment for the value of the pears.

The defendant, by its answer, admits that the pears were to be shipped by the defendant to Portland, and were shipped on October 5, 1922. That they were allowed to remain on the dock in the City of Portland from the date of their arrival, October 7th, to the time when the steamship company proceeded to load the same, on October 14th. That the loading was completed on October 17th. Admits that the pears when they arrived in the City of Portland were in excellent condition for shipment to London; admits the alleged value of the pears and that the plaintiff received no financial returns for them; that they were a total loss; and that because of their overripe condition when they arrived in London they were dumped into the ocean.

Defendant denies the contract alleged and the other allegations of the complaint.

It appears that plaintiff is engaged in the business of growing pears near Medford, Oregon, where it is represented by Mr. W.E. Brayton as its agent in managing its orchard. Mr. P.C. Cripps, the secretary of the plaintiff, visits Medford and gives instructions to Mr. Brayton about twice a year. The defendant is a commission merchant engaged in the business of selling fruit with its office at London, England, and has a representative, named C.E. Barr, at Medford, Oregon, who solicits business and assists in forwarding products to the defendant. Defendant's Medford representative, through one Johnson, forwarding agent, engaged space for the shipment of the pears on the steamship "Gothic Star," which was scheduled to arrive in Portland, October 7th, to load preparatory to sailing to London.

The plaintiff packed the pears on October 4th and loaded them at Medford, Oregon, in ordinary box or furniture cars, which Mr. Brayton, its agent, ordered. They were shipped over the Southern Pacific railway, consigned to the dock of the steamship company. The testimony indicated that it was warm weather when the pears were shipped from Medford to Portland and that they were warm when they arrived. The shipment was so timed that the pears arrived on October 7th, the date when the steamship was due to arrive in Portland, but the "Gothic Star," which was at Seattle, was delayed by a strike and by foggy weather, and when the pears reached the dock on Saturday evening, the steamship had not yet arrived. Johnson, the forwarding agent, upon inquiry of the steamship officials, was informed that the ship would arrive on the following Tuesday. Therefore, the pears were unloaded from the box-cars and were piled on the north side of the covered dock of the steamship company next to a concrete wall, and over the water which, the testimony tended to show, was a cool place, to await the arrival of the boat.

There was a cold storage building in the course of construction on or near the dock, but not completed so as to receive fruit. There were no cold storage facilities at or near the dock in question. In order to place the pears in cold storage it would have been necessary to have switched them back a distance of about ten miles to a cold storage house near the Union depot in Portland, and there unloaded them into the cold storage house, which would have required approximately twenty-four hours, and the same length of time would have been required to have returned the pears from the cold storage to the dock where they could be loaded into the ship.

Defendant asserts that the pears being packed in boxes and wrapped in paper it would have required two or three days in cold storage before the pears would have gotten cold, and claims that to take pears which are warm and put them in cold storage for a few days only and then bring them out, permitting them to become warm again for a period of twelve to twenty-four hours before again placing them in cold storage, is more injurious to the pears than to leave them in a uniform moderately warm temperature.

When Tuesday arrived the boat was again delayed. The steamship officials informed Johnson that the boat would arrive the next day. The same thing occurred on Wednesday, and each day thereafter until October 14th, when the boat put in an appearance. Each day Johnson, the forwarding agent, was assured by the steamship officials that the boat would arrive next day. When the boat arrived the pears were the first freight loaded.

At the time the ship arrived, and before the pears were loaded into it, it was found that some of them had begun to show signs of ripening in the form of softness near the stems. Some doubt was expressed by the steamship officials as to whether the pears were in a condition to stand the trip to London under cold storage. Johnson, the forwarding agent, was sent for and further examination of the pears was made, and after advising with the ship's officers it was decided by all of them that the pears would stand the journey.

It developed, however, that the pears were not, in fact, in a condition to stand the long journey. During the arrangement for the shipment and at the time of receiving the pears at the dock in Portland, Johnson, the forwarding agent, wrote to the defendant at Medford, giving all of the details of unloading the pears from the cars, immediately upon their arrival at the dock, and placing them against the concrete fire wall on the north side of the dock, stating: "While this dock is not a cold storage dock, yet with the high ceilings and side doors and further, that it is directly over the water, will keep the fruit in good shape prior to its going on to the ship the first of the week."

On October 14th Johnson wrote the defendant at Medford, informing it that the pears were loaded in an advantageous position on the ship, and in regard to the pears seeming to be soft and the consultation with the ship's officers and also, suggested that the pears be disposed of without delay as soon as they arrived at their destination.

The letters written by Johnson, and all of the correspondence in regard to the shipping of the pears, Mr. C.E. Barr, the defendant's representative, testified he showed to plaintiff's representative Mr. Brayton, soon after the receipt of each letter, as well as the letters of instruction written by the defendant to Johnson, the forwarding agent.

Mr. P.C. Cripps, secretary of the plaintiff, testified as a witness upon the trial of the case that he was at Medford in September, 1922, and had a conversation with Mr. Barr as a representative of defendant in regard to the shipment of the pears to London, England. He states thus:

"* * and we told him at that time we had decided to ship two cars of fruit to London, and we discussed the freight and the storage, and, as this was a new market that we wanted to develop, we wanted to use every precaution to take care of the fruit, and he said everything would be done to put it there in good shape.

"Q. Was anything said on that occasion as to whether or not the pears should be put in cold storage, or what should be done with them when shipped? A. Mr. Brayton raised the question that if the pears got there before the boat they would have to be taken care of. We didn't want them to overheat and at that time he said there would be a charge of eight or nine cents for the storage of the pears, and we told him to use every precaution and take care of them and put them in cold storage."

The testimony on the part of defendant tended to show that Mr. Barr consulted with Mr. Brayton, who was the only representative of the plaintiff at Medford at the time of the shipment of the pears, as Mr. Cripps left soon after the conversation. Mr. Brayton advised Mr. Barr that he did not want the pears to be put in cold storage. It was too expensive. And that there was no agreement between the plaintiff and the defendant that the pears should be put in cold storage. It was stipulated, as evidence, by counsel for the respective parties that if the officers of the steamer "Gothic Star" were witnesses they would testify that at the time the pears were loaded upon the steamer "Gothic Star," "the said pears were in a ripened condition, and that the log of the said steamer, made at the said time, shows that the same were in a ripened condition."

AFFIRMED. REHEARING DENIED.