Pearson v. McKinney

Appeals by defendant from the judgment and from the order denying a new trial.

The plaintiff sued to recover damages alleged to have been sustained by reason of the refusal of the decedent, E. E. Hendrick, to deliver to plaintiff certain orange and lemon trees bought by plaintiff of decedent. The action was begun in Hendrick’s lifetime. He died before the trial and the present defendant,' as administrator, etc., was substituted as the party defendant in his stead. Judgment was given in favor of plaintiff for $28,453.40.

The agreement of sale was in writing and is made a part of the complaint. It was executed on November 12, 1906, and embraced two contracts of sale. The first was a sale by Pearson to Hendrick of a number of “seed-bed orange plants” on the Charlton Ranch, estimated at one hundred and fifty thousand, at twenty dollars per thousand, to be delivered by the fifteenth day of May, 1907. This contract was fulfilled and is of no importance except as it may explain the meaning of the other contract of sale. The second was a contract of sale from Hendrick to Pearson of “25,000 budded trees of standard size” at prices fixed according to age. Delivery was to be made during the years 1909, 1910, and 1911.

The court below found that Pearson demanded delivery of orange and lemon trees under the contract, and as alleged in the complaint, as follows: Of orange trees, 5,000 on April 30, 1909; 5,406 on May 25, 1909; 5,000 on May 31, 1909, and 6,326 on June 30, 1909; of lemon trees 2,000 on May 31, 1909,

The contract for the sale of the twenty-five thousand budded trees is peculiar in some respects and we think the court below did not correctly construe it. It is necessary to state its terms at some length. In quoting it we will, for the sake of brevity and for an easier grasp of its meaning, substitute the name “Pearson” for the words “party of the first part,” and “Hendrick” for the words “party of the second part.” The seed-bed orange plants sold by Pearson to Hendrick were to be delivered by Pearson in boxes by the fifteenth day of May, 1907, and this was done. The material parts of the second contract are as follows:

“It is also agreed that in ease of all or a portion of the seedbed stock sold by (Pearson) to (Hendrick) being killed by frost, (Hendrick) will be relieved from the obligation contained in this contract to furnish trees to (Pearson) in the proportion which the total amount of trees sold to (Hendrick) by (Pearson) bears to the amount of trees killed by frost. . . .

“It is further agreed, in consideration of the premises and of the covenants hereinafter contained, that (Hendrick) will sell to (Pearson) and (Pearson) will buy 25,000 budded trees of standard size, and (Pearson) shall have the option of purchasing said trees at one-year old or two-year old from the bud. If taken at the age of one year from the bud (Pearson) agrees to pay thirty cents per tree; if taken at the age of two years old from the bud, thirty-five cents per tree, and if taken at the age of three years old from the bud forty cents per tree.

“It is stipulated that a standard tree one year old from the bud shall be five-eighths of an inch in diameter two inches above the bud, and that a standard tree two years old from

“It is hereby agreed that (Pearson) shall give notice to (Hendrick) one month before the trees are budded as to the variety which (Pearson) will select in purchasing the trees as per this contract and the option hereinafter set forth.”

A paragraph followed stating the option last mentioned which gave Pearson the privilege of purchasing twenty-five thousand additional standard trees upon the same terms. No trees covered by this option are in controversy here and it has no bearing on the case.

The complaint sets forth the contract in full, alleges the several demands for trees one year old from the bud and the several refusals to deliver the same, states the amount of damages caused thereby and demands judgment. It does not aver that at the time of each or any demand, Hendrick had on hand trees of standard size, or trees one year old from the bud, in numbers sufficient to comply with such demands. The evidence shows that at the time of these demands and up to the time the action was begun only about five thousand trees had reached standard size. The complaint alleges, in general terms, that Pearson duly performed all the conditions of the agreement on his part, but it does not otherwise aver that he gave Hendrick any notice one month before the trees were budded, or at all, as to the variety of trees he would buy. There is no allegation that any such notice was given or that any trees were budded in pursuance thereof, or at all.

The findings, in response to the allegations in the answer, state that on March 31, 1908, Pearson notified Hendrick as to the varieties he would select in purchasing under the agree* ment, to-wit: “twenty per cent Thompson Improved Navels, twenty-five per cent Valencias, forty-five per cent Washington Navels and ten per cent Eureka Lemons.”

Where one makes an unqualified agreement to sell goods to be delivered at a fixed time, or on demand of the buyer within a stated period, and it is inherently possible to obtain the goods, the fact that the seller may have expected to manufacture the goods himself, or to procure them from a certain source, and has not been able to complete or obtain them when delivery is due, does not excuse performance. In that event,

Where the contract is not a general undertaking to sell the goods, which the seller is to have ready at all events when delivery is due, but is a contract to sell a specified article when it grows to a specified size or age, or a certain number to be selected out of a particular larger lot or to be produced from a specified source, or to be prepared in a manner to be after-wards prescribed by the buyer, a different rule prevails. The sale and delivery are then made to depend upon the happening of the precedent conditions. Until they have occurred, there is no obligation upon the seller to deliver, unless their nonoccurrence was occasioned by his fault. And if they do not occur, or their occurrence becomes impossible, without his fault, he is excused from performance. Likewise, if the occurrence is delayed without his fault, the time of performance is postponed accordingly. A case in point is Howell v. Coupland, L. R. 9 Q. B. 462, S. C. on appeal, L. R. 1 Q. B. Div. 258, where one party agreed to sell a crop of potatoes to be grown on a certain tract of land. The crop was so poor, from blight, that he did not raise enough to fill the contract and he was excused thereby from full performance. Other illustrations of the general rule are found in Appleby v. Myers, L. R. 2 C. P. 657; Taylor v. Caldwell, 3 Best & S. 833, 32 L. J. Q. B. 164 ; Stewart v. Stone, 127 N. Y. 500 , [ 28 N. E. 595 , 14 L. R. A. 215 ]; Dexter v. Norton, 47 N. Y. 62 , [ 7 Am. Rep. 415 ]; McMillan v. Fox, 90 Wis. 173 , [ 62 N. W. 1052 ]. (See, also, 2 Mechem on Sales, secs. 1100, 1101.)

■ Under these conditions there was no implied warranty by Hendrick that the trees should be one year old from the bud and of standard size at all times, or at any particular time, during the year 1909. There is clearly no express warranty to that effect. He was under no obligation to bud for Pearson until one month after Pearson gave him notice, and after such budding one year must have elapsed and the trees must have grown to standard size before there could be any obligation resting upon Hendrick to deliver them.

There is no express warranty that the trees so budded should grow to standard size in one year thereafter, or at any specific

The contract fixes no time for the completion of the process of budding the twenty-five thousand trees in question. It required it to be begun at the expiration of thirty days from service of notice of selection; but no time of completion is stated. “If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.” (Civ. Code, sec. 1657.) It cannot reasonably be contended that it required the task of budding to be done in one day. Referring for the moment to the evidence in the particular case, it appears that only a little over one fourth of these one hundred and fifty thousand trees were large enough to bud until after July 1, 1908. The suit was begun July 1, 1909. The evidence further shows by the uncontradicted testimony of experienced nursery-men that but a small percentage of budded citrus trees will grow to standard size in one year after budding, even with proper care and treatment. No definite time of delivery is fixed, except as it is fixed by the option

Prom all these considerations it follows that the complaint fails to' state a cause of action. It should have alleged generally that Hendrick had trees of the size and age specified, subject to the contract, which he could have delivered. In the absence of this, and perhaps this would have been a better form of pleading, it should have stated the particular facts showing a legal obligation upon Hendrick to comply with the demands at the times they were made. In the latter form it should have shown the date of the giving of notice by Pearson of the selection of varieties, and that the varieties selected were the same as were demanded. In view of the fact that a reasonable time was allowed to complete the budding and the uncertainty that the trees budded in May and June, 1908, would attain standard size in May or June, 1909, when the demands were made, in sufficient numbers to meet those demands, such growth would scarcely be presumed, and it should have been alleged. This defect in the complaint requires a reversal of the judgment.

We have considered the rights of the parties under the contract, as we.conceive them to be upon the hypothesis that Hendrick had performed all the duties thereby imposed upon him except the failure to deliver the trees. No other breach is alleged and none other can be presumed. Upon the trial an attempt was made by the plaintiff to show that Hendrick had carelessly selected an unsuitable place in which to transplant, bud, and grow the trees to standard size, and that he

It is contended by the defendant that the contract was an entire one for the sale of twenty-five thousand trees in one lot and that Pearson had no lawful right to make successive demands for performance or require delivery by piecemeal. The contract must receive a reasonable construction and its subject-matter must be considered in its interpretation. We have seen that all of the trees could not be reasonably expected to become one year old from the bud, or of standard size, on a particular day, but that, ordinarily, they would become so in smaller lots at irregular and uncertain intervals. No objection seems to have been made at the time by Hendrick to successive demands of parts only, of the entire lot. We think a reasonable construction of the agreement, and one most favorable to both parties, would allow demands by the buyer, or offers by the seller, of reasonable quantities, less than the whole, at reasonable intervals, subject to the rule before stated that, in the absence of negligence, reasonable time for delivery must be given, as the circumstances required.

In view of the possibility of another trial upon amended pleadings, it is necessary to notice some other points presented by the record. Pearson, in the notice as to the variety he would select in buying, included four different varieties. It is claimed that the contract limited him to one. We think in this case the singular should be held to include the plural, and that it gave Pearson the right to choose a reasonable number of varieties that could be obtained by Hendrick with reasonable effort.

It is contended that Pearson’s demands were insufficient and ineffectual, because no money was tendered in payment concurrently with the demand for delivery. It is true that upon a sale of goods for an agreed price, if the contract contains nothing to the contrary, payment and delivery are concurrent

The notice by Pearson as to the varieties he would select in buying, was given on March 31, 1908. About twenty-three thousand trees were budded by Hendrick in the month of April, 1908, to some of the varieties selected by Pearson and about twenty-two thousand more were budded in May and June, 1908. These comprised all of the trees of the Pearson stock that were large enough for budding at that time. The plaintiff insists that five thousand of the trees budded in April had reached standard size in May, 1909, and that they constituted a part of the trees which Hendrick agreed to sell by the contract, and that plaintiff was therefore entitled to delivery thereof upon the demand of May 31, 1909, or upon one of the previous demands. Hendrick refused to deliver them, claiming that they were not subject to the agreement of sale. The contract declares that Pearson’s notice of the selection of varities to be budded for delivery to him should be given to Hendrick “one month before the trees are budded.” Consequently, budding in pursuance of the notice and for delivery to Pearson, need not have been commenced during the month following the service of the notice. This time was evidently allowed for the benefit of Hendrick, to

The judgment and order are reversed.

Angellotti, J., and Sloss, J., concurred.

Hearing in Bank denied.