Hind v. Oriental Products Co.

This is an appeal from a judgment on a verdict in favor of the plaintiffs in the sum of $26,349.36. On the twenty-ninth day of November, 1919, the defendant purchased from the plaintiffs through W. J. Withers, a broker, a quantity of Chinese shelled peanuts. The contract was reduced to writing, and the provisions thereof with which we are here concerned are as follows: “Quantity: One hundred (100) tons. Article and description: Chinese shelled peanuts, 30/32s from Shanghai, F.A.Q. (fair, average quality) of the season. Package: Usual. Price: Thirteen cents (13(i) per pound, F.O.B. coast, duty paid, net landed weights, net cash on arrival and inspection. Shipment from China during December/January. Routing: Seller reserves the privilege of routing all freight, but will give terminal delivery by line requested by buyer.” The contract was signed by the plaintiffs as sellers and by the defendant as buyer. The peanuts were shipped from Shanghai in due time, arrived at Seattle by the steamship “Eastern Victor” on March 2, 1920, and were inspected by the defendant. Prior to, at the time of and after the arrival of the vessel, shipping instructions were requested by the plaintiffs from the defendant, so that the plaintiffs could fulfill their contract to place the merchandise f. o. b. ears or carrier with terminal designated by the defendant. Shipping instructions were not given as requested nor at all. Pending the delay incident to the refusal of the defendant to furnish shipping instructions the merchandise was placed in a bonded warehouse, where it was located at the time of the tender and rejection next to be noted.

On March 8, 1920, the plaintiffs delivered to the defendant the following delivery order:

“San Francisco, March 8>, 1920.

“Hind, Rolph & Co.,

“Seattle, Wash. -Warehouse.

“Deliver to Oriental Products Company, Inc., or order one hundred tons shelled peanuts (1112 bags) marked:

H.R. No. 18. San Francisco (100 tons only) Peanuts. No. 18. ex S. S. — Eastern Victor.

“ (Signed) Hind, Rolph & Company,

“Per J. L. Keegan.”

Accompanying the delivery order was the following invoice :

“No. 2112. San Francisco, March 8, 1920.

“The Oriental Products Company, Inc.,

“San Francisco, Calif.

“Bought of Hind, Rolph & Co., 230 California Street. Payable net cash on arrival and inspection. In U. S. gold coin. Peanuts. No. 18. 33—Eastern Victor. 1112 bags (180 lbs. net) Chinese shelled peanuts. Gross 202,940 lbs. Tare 2780 lbs. Net 200,160 lbs., at 13 cents per lb. f. o. b. Coast, duty paid, net landed weights, $26,020.80.

“E’. & O. E. (errors and omissions excepted).

“ JLK—EK.”

Thereafter the defendant on the date it bears delivered to the plaintiffs the following document:

“March 11, 1920.

“Hind, Rolph & Co.,

“230 California Street,

“Gentlemen: We are herewith enclosing delivery order and invoice, covering 100 tons shelled peanuts tendered. We regret exceedingly that we are obliged to reject this tender because of the fact that the ■ goods are packed in 180# bags instead of 100# bags as purchased, and in addition to this that the report from Seattle on the count is thirty-two thirty-four instead of thirty thirty-two, as purchased. Regretting the necessity of rejecting this tender, we beg to remain,

“Oriental Products Co.

“E. W. Rosston.”

Subsequent to the foregoing rejection of tender this action was brought and went to trial • on an amended complaint filed August 23, 1920, which charges in two • counts. The first count alleges, among other things, the contract of purchase and sale, the arrival of the goods and the inspection thereof by the defendant, the tender of the goods with an intention to transfer the title to the defendant, the rejection of

The complaints were drawn and the case was tried so far as the plaintiffs were concerned upon the theory that the tender was made with the intention to pass title; that the title thereby passed to the defendant, and that because of the rejection of the tender the plaintiffs were entitled to recover the purchase price in accordance with the provisions of sections 1141, 1485, 1502, and 3310 of the Civil Code. It was and is the contention of the defendant that the tender was not made with the intention to pass the title; that the title did not thereby pass; that the measure of damages as provided by section 3311 of the Civil Code should have been applied, and that the plaintiffs have therefore mistaken their remedy. In its conduct of the ease the trial court adopted the theory of the plaintiffs as applied to the facts and the verdict of the jury was in favor of the plaintiffs on that theory. [1] The intendments are in favor of the judgment, and if the evidence in support of the verdict be substantial, either with or without conflict, the implied findings of the jury will be deemed sufficiently supported. (Hassell v. Bunge, 167 Cal. 365 [ 139 Pac. 800 ] ; Bancroft-Whitney Co. v. McHugh, 166 Cal. 140 [ 134 Pac. 1157 ]; Ryder v.

It appears without conflict that at the time of the tender, on March 8, 1920, the plaintiffs had not paid the duty, had not ascertaine'd the net landed weights, and based the amount of the invoice on the gross shipping weights. Prom these facts it is contended by the defendant it must follow that the plaintiffs had not complied with their contract, had conditioned the tender on an excessive demand, and therefore could not pass title and place the defendant in default. The plaintiffs counter that in the defendant’s letter rejecting the tender the defendant specified objections to the tender on two grounds only, that the objections stated were unjustified, were found by the jury to be unjustified, and that by the failure of the defendants to object at the time to the tender on other grounds later insisted upon, all such other objections were waived under section 1501 of the Civil Code and section 2076 of the Code of Civil Procedure.

[2] The objections to the tender specified in the defendant’s letter of rejection were “that the goods are packed in 180-pound bags instead of 100-pound bags as purchased,” and “that the report from Seattle on the count is thirty-two thirty-four instead of thirty thirty-two as purchased.” As to the size of the bags the only provision in the contract having reference to the subject is “Package: Usual.” There is nothing in the contract requiring shipment in 100-pound bags. It therefore became necessary for the jury to determine what packages were usual in the trade of which this particular shipment was a part, that is to say, whether in the shipment of shelled peanuts from Shanghai at the time in question it was customary and usual to use 180-pound bags. The court properly permitted evidence of custom and usage on this point for the reason that the term “usual” required explanation, not in derogation of the contract, but in aid of its interpretation (subd. 12, see. 1870, Code Civ. Proc.). It was in evidence that in the absence of a specific provision of the contract as to size of bags to be used it was optional with the shipper at Shanghai to select the size. There was abundant evidence that under such circumstances a bag of from 100 to 200 pounds capacity, including a 180-pound size, was usual and customary. Witness Withers, the broker who negotiated the sale, so testified, as did also wit

Concerning the quality of the peanuts the contract provided that they should be 30-32’s, that is, from thirty to thirty-two whole peanuts to the ounce. It will be noted that the letter rejecting the tender did not state as a fact that the peanuts were not of the required size, but only that “the report from Seattle on the count” was that they were 32-34s. The agent of the defendant at Seattle inspected the goods and took samples before the rejection. Samples were also mailed to the defendant at San Francisco prior to the rejection. The plaintiffs procured samples and had counts made prior to that time. The evidence was in conflict as to the result of the several countings but there was substantial, direct and positive evidence of those.who had weighed the sample that the peanuts were 30-32’s as required. [3] The testimony of the witnesses O’Brien, Keegan, Beamer, and Newliall was sufficient to support the implied finding of the jury that the peanuts satisfied the description required by the contract.

As to the objections not mentioned in the letter rejecting the tender, it is the contention of the plaintiffs that they were, and each of them was waived by the defendant because of its failure to specify the same as provided in the code sections mentioned. Section 1501 of the Civil Code reads: “All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated.” Section 2076 of the Code of Civil Procedure provides: “The person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument or property, or he must be deemed to have waived it; and if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms or kind which he requires, or be precluded from objecting afterwards.” [4] These two sections must be read together as though they were parts of the same statute (Pol. Code, sec. 4480; Allen v. Chatfield, 172 Cal. 68 [ 156 Pac. 47 ]). When so read and applied to the present case they would mean that when the tender was made to the defendant it was incumbent upon

[6] At the close of the plaintiff’s case the defendant made a motion for a nonsuit on the ground that the evidence was insufficient to support a verdict in favor of the plaintiffs and particularly that there was no evidence that the defendant knew prior to its rejection of the tender what the gross shipping weights were. The motion was denied and the ruling is assigned as error. But there was evidence introduced during the plaintiffs’ ease in chief from which the jury might infer that the defendant knew the amount of the gross shipping weights prior to and at the time of rejection. The bill of lading showing the oriental shipping weights was received by the plaintiffs at San Francisco on February 25th. On the following day the representative of the plaintiffs called at the office of the defendant with the weight certificate and bill of lading showing the gross shipping weights and a surveyor’s certificate showing the peanuts to be 30-32’s and asked for shipping instructions, which were refused. Later on in the trial there was evidence that prior to the rejection the original bill of lading showing the gross shipping weights was inspected by a representative of the defendant. From this evidence the inference might also be drawn that the defendant had knowledge of such weights before its letter of rejection.

[9] Defendant cites the cases of Blackwood v. Cutting Packing Co., 76 Cal. 212 [ 9 Am. St. Rep. 199 , 18 Pac. 248 ], in support of its contention that the ascertainment of the net landed weights was a condition precedent to a valid tender. But that ease does not hold that weighing is necessary if the goods be otherwise identified. The court there quotes the following rule laid down by Mr. Benjamin: “ ‘Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend upon the quantity or quality of the goods, the perform

[10] The defendant further contends that, under the contract, the plaintiffs were required to pay the import duty before they could be in a position to make a valid tender. It is unquestionable that the plaintiffs obligated themselves to deliver the merchandise free of duty. However, there is nothing in the contract as to when the duty should be paid. The defendant knew at the time of rejection that the goods were in a bonded warehouse and it was uncertain whether any duty would have to be paid until after shipping instructions had been furnished. If the terminal to be indicated by the defendant were domestic, the payment of the duty would, of course, be necessary in order that the goods be released from bond. But if the designated terminal were a foreign port or in a foreign country, which it might have been, no duty would have been required. Even though the

It satisfactorily appears that the parties to the contract contemplated that shipping instructions should be furnished by the buyer before the goods were placed f. o. b. carrier. The written contract is not as explicit on the subject as it might be, for it merely provides that the “seller reserves the privilege of routing all freight, but will give terminal delivery by line requested by buyer.” This language might reasonably be said to import an obligation on the part of the defendant to designate the terminal at the appropriate time, but whatever uncertainty or omission occurs in the language of the contract is clarified and supplied by the evidence herein that, pursuant to custom and usage of the trade, unless otherwise specifically provided by contract, it was the duty of the buyer to furnish shipping instructions before the seller was required to pay the duty or ascertain the f. o. b. weights. [11] It is the general rule that when there is a known usage of the trade, persons carrying on that trade are deemed to have contracted in reference to the usage unless the contrary appears; that the usage forms a part of the contract, and that evidence of usage is always admissible to supply a deficiency or as a means of interpretation where it does not alter or vary the terms of the contract. (Brown v. Howard, 1 Cal. 423 ; Taylor v. Castle, 42 Cal. 367 ; Burns v. Sennett, 99 Cal. 371 [ 33 Pac. 916 ]; Union Ins. Co. v. American Ins. Co., 107 Cal. 333 [ 48 Am. St. Rep. 140 , 28 L. R. A. 692 , 40 Pac. 431 ]; 6 Cal. Jur. 315, and cases cited; Miller v. Germain etc. Co., 193 Cal. 62 [ 222 Pac. 817 ].)

The defendant earnestly insists that the present case is governed by the rules laid down in Gopsevic v. California Packing Corp., 64 Cal. App. 132 [ 220 Pac. 1078 ]. That was an action to recover the purchase price of the entire crop of prunes grown by plaintiff on his orchard. The contract provided that the seller was to harvest, properly dry and cure the crop for the season 1920 and deliver the same to defendant. By the express terms of the contract title to the prunes was to pass to the buyer after completion of weighing and payment, and thereafter the crop was to be at buyer’s risk. The plaintiff claimed to have properly dried and cured the prunes and made them ready for shipment, and to have offered to deliver the same in accordance with the terms of the contract, but that the defendant refused to accept them. The plaintiff claimed to have made an unconditional tender of the goods. There was neither allegation nor proof of an intent to pass the title at the time of the tender, nor was there allegation or proof of a waiver on the part of the defendant as to the sufficiency of the tender. The proof showed that the plaintiff insisted upon standing on the letter of his contract to the effect that payment should

It is contended by the defendant that the plaintiffs’ pleadings are insufficient to justify recovery. It is suggested that the theory of the plaintiff’s case is that the failure of the defendant to furnish shipping instructions was an excuse available to the plaintiffs for not performing the alleged conditions precedent under the contract. The plaintiffs allege full performance on their part and it is insisted that under the facts they should have alleged excuse for nonperformance if they expected to recover. The ease of Peek v. Steinberg, 163 Cal. 127 [ 124 Pac. 834 ] is relied on. In that case the allegation was that the plaintiff had performed on his part. The proof did not show performance but did show excuse for nonperformance. The court said: “Such an allegation will not justify a recovery on proof of a valid excuse for nonperformance. ‘The rule is fundamental that the complaint must either allege performance or a valid excuse for nonperformance. One is not the same as the other.’ ” But here full performance was alleged. Keeping in mind the waiver of objections to which the defendant committed itself, the proof showed a sufficient offer of performance on the part of the plaintiffs. [15] Although the failure of the defendant to furnish shipping instructions might have justified the plaintiffs in proceeding on the theory of excuse for nonperformance, that circumstance did not prevent them from offering to perform and thereafter alleging performance.

[16] The giving of certain instructions requested by the plaintiffs and the refusal of certain proposed instructions requested by the defendant are alleged as error. It is insisted that it was error to give that portion of instruction XXI to the effect that if the jury should find that the defendant failed to furnish shipping instructions when it was required to do so within a reasonable time after the arrival of the goods, and such failure delayed or prevented the

[17] Instruction No. VIII, given at the request of plaintiffs, was to the effect that if there be two inferences equally reasonable and equally susceptible of being drawn from the proved facts, the one favoring fair dealing and the other favoring corrupt practice, it was the duty of the jury to draw the inference favorable to fair dealing. The defendant contends that this instruction was ambiguous and misleading; that it may have been misconstrued by the jury as intending to indicate that in the opinion of the court one of the parties had dealt fairly and the other had favored corrupt practice. We do not think the instruction is subject to the criticism offered. It was a correct exposition of the law on the subject. (Byder v. Bamberger, supra, and eases cited.)

[18] Complaint is made of the modification of instruction No. V proposed by the defendant whereby the clause “and that the burden of proof is upon plaintiffs to establish that fact by a preponderance of the evidence” was stricken out. But elsewhere in its charge the court fully instructed the jury as to the burden of proof and the preponderance of evidence.

The defendant criticises other instructions given as proposed or given as modified. They have been examined and are found to be not subject to the objections interposed. Complaint is also made that numerous instructions proposed by the defendant were not given. They constitute an exposition of the law from the defendant’s point of view and, where applicable to the facts, were covered by instructions given.

The judgment is affirmed.

Waste, J., Richards, J., Lawlor, J., Seawell, J., Lennon, J., and Myers, C. J., concurred.

Rehearing denied.