California Canning Peach Growers v. Bardell & Oregoni

As filed in the trial court the complaint in this action named the defendants as follows: “Bardell & Oregoni, V. Bardell, John Doe Oregoni, Richard Roe and Sam Stoe”. While our attention has not been called to the substitution of the name of Maria Oregoni as one of the defendants given a fictitious name in the title, it appears from the record that she filed an answer as one of the defendants. The complaint does not allege the existence of any partnership between the defendants, but simply sets forth that the defendants, on a certain date, applied for membership in the plaintiff-association. Upon this appeal it is contended that U. Bardell, G. B. Oregoni and Maria Oregoni are co-partners. The trial court, however, found that the partnership consisted only of U. Bardell and G. B. Oregoni. (We may here state that the names of the defendants are spelled-differently in different portions of the transcript, but we will follow the spelling as given above.)

The plaintiff, appellant in this action, is an association regularly incorporated under the laws of the state of California, as a nonprofit co-operative association, for the purposes of marketing peaches grown by the members of the association. The general features of the association have been fully set forth by this court in the case of California Canning Peach Growers v. Downey, 76 Cal. App. 1 [ 243 Pac. 679 ], and California Canning Peach Growers v. Harris, 91 Cal. App. 654 [ 267 Pac. 572 ], and need not be again set forth herein.

The agreement describes the plaintiff as the buyer and the defendants as the grower. While this form of the agreement is used, the association really directs the place where the grower shall make delivery of peaches, and also to whom delivery is to be made. Whether the association is the actual buyer of the peaches, or is simply the controlling agent for the marketing of the peaches, the collecting of the moneys agreed to be paid therefor does not need to be further considered, as this court has held such agreements valid irrespective of the legal relationship created by the execution of the standard form of marketing agreements. . After setting forth what each of the contracting parties -may do, provision is made for the termination thereof, paragraph 18 reading as follows: “The grower may file with the buyer, between February 1st and March 1st of each of the years 1924, 1926, 1928, 1930, 1932 and 1934, a written notice of his desire to withdraw from this contract, and the buyer will thereupon give its written release thereof, and thereupon said contract shall be canceled as to the succeeding years of the contract period. And the buyer is also hereby given the right to give notice to the growers, between March 1st and May 1st of either of the above named years, of its desire to withdraw from this

On February 1, 1930, the defendants, U. Bardell and G. B. Oregoni, through their attorneys, gave the following notice to the plaintiff-association:

“Law Offices “Gumpert & Mazzera “Bank of Italy Building,

‘' Stockton, California.

“February 1, 1930. “California Canning Peach Growers,

“244 California Street,

“San Francisco, California.

“Dear Sirs: The undersigned, G. B. Oregone and U. Bar-dell, Route 1, Box 449, hereby give notice of withdrawal from the California Canning Peach Growers Association as per previous communications with you.

“Very truly yours,

“IT. Bardell and G. B. Oregone, “Route 1, Box 449,

“By Gumpert & Mazzera,

“Attorneys.”

To this notice the plaintiff, under date of February, 1930, replied as follows:

“Bardell & Oregoni, No. 2429.

“R. F. D. 1, Box 449,

" Stockton, California.

“Gentlemen: We beg to acknowledge your letter under date of February 1, 1930, wherein you give orders of withdrawal from your membership contract with the Association. As your notice of withdrawal has been filed in accordance with the provisions of Paragraph No. 18 of the Marketing Agreement, we hereby cancel contract in compliance with your request. We regret very much that you have elected to withdraw your support from our Association, and thanking you for the cooperation and support you have given, we are,

“California Canning Peach Growers,

“By A. D. Poggetto,

“Manager.”

“California Canning Peach Growers,

“California Street,

“San Francisco, California.

' ‘ Gentlemen:

In the matter of my withdrawal in February of this year, from the association, I have decided to cancel the same and ask that my contract shall be restored. Please consider this letter as a notice and application to that effect, and greatly oblige.

“Tours truly,

“Bardell & Oregoni, “Per Maria Oregoni.

“Dated this 10 day of June, 1930.”

Under date of June 13, 1930, the association wrote a letter addressed to Bardell & Oregoni, as follows (omitting the title) :

“We wish to acknowledge receipt of your letter dated June 10, 1930, advising that" you have rescinded your withdrawal action. In accordance with your instructions we have disregarded your letter of withdrawal, and therefore, your marketing agreement No. 2429, signed on June 11, 1938 (evidently intended to be ‘1928’) remains in full force and effect. We appreciate very much your action in

this matter, and thanking you for your continued support, we are,

“Yours very truly,

“California Canning Peach Growers “By A.D. Poggetto.”

The trial court found that Maria Oregoni was not a partner with IT. Bardell and G. B. Oregoni, in the raising and marketing of peaches, and likewise, that she was not authorized, as the agent of Bardell & Oregoni, to sign the application for a restoration of the rescinded marketing agreement which we have referred to herein.

The contention of the appellant is that Maria Oregoni is shoivn by the. testimony to be a copartner in the raising and marketing of peaches with U. Bardell and G. B. Oregoni; that if not a partner, she was an authorized agent of the partnership to sign the paper purporting to request the restoration of the canceled agreement. It was further contended by the appellant that if Maria Oregoni was not authorized to sign the paper dated June 10, 1930, that her acts were subsequently ratified by U. Bardell and G. B. Oregoni, and also that the subsequent delivery of fruit by U. Bardell and G. B. Oregoni to the plaintiff, estops the defendants from denying the partnership relation, and also from denying the authority of Maria Oregoni to sign the name of Bardell & Oregoni, by herself, to the application for restoration of the marketing agreement. The complaint asks for a specific enforcement of the agreement, attorneys’ fees and costs, and an injunction restraining the defendants from delivering peaches, other than as directed by the plaintiff-association.

■ While the contention of the appellant is presented in about a dozen different specifications, a determination of this appeal revolves around three questions: The authority of Maria Oregoni to bind U. Bardell and G. B. Oregoni, as their agent; the existence or nonexistence of a partnership relation between Maria Oregoni, U. Bardell and G. B. Oregoni, and the authority of Maria Oregoni to bind the partnership; and finally, was there any ratification by U. Bardell and G.

In considering the relationship and the authority of Maria Oregoni, it must be remembered that the record discloses no representations made by any of the defendants that Maria Oregoni was ever authorized to sign any agreements binding the partnership, nor were any representations ever made by any of the defendants to the plaintiffs, or to anyone else, that Maria Oregoni was. a member of the partnership of Bardell & Oregoni. The defendants U. Bardell and G. B. Oregoni both denied the existence of any partnership relation with Maria Oregoni. Also denied that they had ever given Maria Oregoni authority to sign the request for the restoration of the marketing agreement. Both U. Bardell and G. B. Oregoni had stated to the agents of the plaintiff that they would not again become members of the association, and that after the cancellation of the agreement it was their purpose to sell peaches as best suited their business interests.

During the year 1930 the record shows that U. Bardell and L. B. Oregoni sold a limited quantity of peaches to the Sun Garden Canning Company under an agreement of sale. We have not figured up the quantity so sold, as that is immaterial. The agreement of sale was not, as claimed by appellant, signed by Maria Oregoni as one entering into the agreement. The record shows that the agreement was signed by U. Bardell and L.

Commencing on August 10, 1030, and ending on or about September 6, 1930, Bardell & Oregoni delivered to the association approximately 133 tons of No. 1 canning peaches, varieties being “Paloras”, “Homesteads” and “Phillips”. On August 12, 1930, the association wrote a letter to Bar-dell & Oregoni in which it was stated that it had come to the attention of the association that they had endeavored to make disposition to others of canning peaches from the orchards, claimed by the association to be under the provisions of the alleged restored marketing agreement. It further appears that at the direction of the association, Bardell & Oregoni allowed 13714 tons of No. 1 “Cling” peaches to go to waste or drop to the ground during the year 1930.

The record further shows that in demanding delivery of peaches by Bardell & Oregoni to the association, the association indicated that it would take legal proceedings against them in the event they did not deliver peaches to the association, and cause them considerable trouble and expense.

The argument advanced by the association that the association had no authority or legal right to accept peaches except under the terms of the marketing agreement, does not appear to us to have any bearing upon the issues involved in this action, as it does not tend in the least to establish either the authority of Maria Oregoni to bind the partnership, or to establish the fact of partnership. All it does establish is that the association asserted a title and right to the peaches and threatened action in the event that they were not delivered, and that the partnership did deliver at least 133 tons of peaches during the year 1930.

This brings us to the controverted question bearing upon the validity of the request for a restoration of the marketing agreement.

The record shows, as we have stated, that the signature of Maria Oregoni to this paper was obtained after the agents of the association had been notified by both U. Bar-dell and G.

The testimony relating to the understanding which Maria Oregoni had as to the terms of the application and its binding effect, is exceedingly lengthy and involved, too long to be set out herein. We may, however, set forth a limited portion thereof: “ Q. How did you come to write your name there? What was said and done at the time? (This, in relation to the application for restoration.) A. They came and asked me about that, if Bardell & Oregoni would sign with the association, and I said ‘no’. Then they asked me if I would sign it and I said ‘no’. Q. Who did? A. Mr. Campodonico. I told him that they said they wanted to sell outside, and didn’t want to go into the association. Then Mr. Campodonico told me that he would give me a paper, black and white, that I could ship and sell to anyone I wanted to; and at the same time he got the contract from his pocket and he read—I don’t know—but he says, they made that paper—here—it is in black and white that you can ship and sell to anyone you want. Q. Was it a paper like this that he showed you? A. Yes sir. Q. What language did you speak ? A. Italian. Q. You and Campodonico had a conversation in Italian? A. Yes sir. Q. Did he tell you that you could not sell or ship to canneries without the consent of the association? A. No, sir. Q. Just how long were they talking about it? A. Oh, maybe an hour. Q. Where were Mr. Bardell and Mr. Oregoni at the time? A. They were working on the ranch. Q. Did he tell you what that paper said—explain it to you? A. No sir. I told him after I signed this paper they might put me in jail, but he said, ‘Sign it; it is all right.’ I don’t know what was in it. ■ I signed that because I thought that I could

The whole tenor of the testimony given by Maria Oregoni is to the effect that her understanding of the paper which she signed was such as did not preclude the selling of peaches outside of the association.

On behalf of the appellant, Campodonico testified as follows : “Q. Now, I call your attention to plaintiff’s exhibit No. 2 (being the application for restoration), and ask you if you have seen that before? A. Yes. Q. Where? A. At Bardell & Oregoni’s dining room on the ranch, June 10. Q. Who was present? A. Mrs. Oregoni. Q. Anybody else? A. Mr. Jackson was with me; Mrs. Oregoni was alone. Q. And what conversation took place at that time? A. Well, at that time we came there to get the answer, whether she was going to join the association or not, and we signed her up that night. Q. What conversation took place, Mr. Campodonico? A. She discussed this contract with us, and said that she had signed the contract, and she wanted to ship some fruit green to some of the eastern firms—I don’t know whether she mentioned the firms or not, but I said—■ . . . she discussed it very much about shipping, and I explained and read the paragraph to her, and she said—she did ask me—she wanted it in writing, and I said, I did not have to give it now in writing, but I said, ‘It is in paragraph 12 here, ’ and I read it to her in Italian and explained it to her after I read it to her. Q. What was done with the paper after that? A. We took it to San Francisco and Mr.

The same difference of understanding of the parties appears from the testimony at the time the appellant notified the defendants not to deliver any peaches other than to the association and controverts the claim of the appellant that TJ. Bardell and G. B. Oregoni, by their acts, ratified the restoration of the marketing agreement.

It appears from the testimony that Campodonico was told that while plaintiff did not have any right to a certain 18 acres of peaches, that the defendants, during the year 1930; had quantities of peaches, and that it could have 100 tons if desired, and the court found that the defendants did deliver to the plaintiff peaches pursuant to the request of the plaintiff, and not as a ratification of any agreement that had theretofore existed between the parties.

The record further shows that nearly all of the conversation was had with Maria Oregoni, rather than with the defendants U. Bardell and G. B. Oregoni, and that Mrs. Maria Oregoni used the singular pronoun in nearly all of her conversation. She spoke of doing this or that, without reference to the partnership or without reference to any authority given to her, and as found by the trial court, Mrs. Maria Oregoni was exceedingly voluble. We may here state that

The trial court found against the allegation of fraudulent conduct on the part of Campodonico and Jackson in procuring the signature of Maria Oregoni to the restoration request, after having failed to secure the signatures of U. Bar-dell and G. B. Oregoni. This finding, however, does not preclude what the record clearly shows, that Campodonico and Jackson obtained the signature of Maria Oregoni with knowledge of the fact that both U. Bardell and G. B. Oregoni were objecting thereto and were refusing to again become members of the association. This, under the authorities which we shall hereinafter cite, establishes the invalidity of the request for restoration and its lack of binding effect upon U. Bardell and G. B. Oregoni, even though a partnership relation, as to the peaches, existed between Maria Oregoni, IT. Bardell and G. B. Oregoni.

Without quoting the testimony which would unduly extend the length of this opinion, it is sufficient to state that the peaches delivered by G. B. Oregoni and IT. Bardell to the association during the year 1930, were delivered voluntarily and because of the fact that there was a surplus of peaches. That there was a large surplus is shown by the fact, as we have stated, that over 130 tons were allowed to go to waste.

There is considerable testimony in the record as to the reading and explanation of the letter written by Poggetto for the association, dated June 13, 1930, by a daughter of Maria Oregoni, and its explanation given by the daughter to Maria Oregoni, but there is no showing in the record that this letter was ever read or explained by the daughter to either U. Bardell or G. B". Oregoni. The daughter was educated in the local schools and appears to have been able to read and understand English very well. Not having been brought home to either IT. Bardell or G. B. Oregoni, it has no binding effect upon either of them.

Again, there is no pretense that either U. Bardell or G.

Thus, in view of the fact that the appellant’s agents had knowledge that U. Bardell and G. B. Oregoni objected to and had refused to sign any application for a restoration of the marketing agreement, the invalidity of the agreement as to them is not changed, even though the appellant’s contention be correct that Maria Oregoni was in fact a member of the partnership. The agents of the appellant were acting with- full notice, and when that is the case, the decisions supporting the rule that the objecting partners are not bound, are uniform.

In 47 C. J., page 833, the rule which we have just stated is set forth and amply supported by the decisions cited in the footnotes. It is there said, in substance, that where a third person deals with one of the partners, without notice to the contrary, he has a right to assume that the partner with whom he is dealing has authority, but where such third person has notice, he is bound by the limitations placed upon the powers of the partner with whom he is acting.

In 20 Ruling Case Law, page 887, section 98, we find the following: “When a partner gives to a third person notice that he will not be bound by the acts of his copartner, this amounts to a notice that the implied agency has ceased, and

The same rule is supported in Dawson, Blakemore & Co. v. Elrod, 105 Ky. 624 [ 49 S. W. 465 , 88 Am. St. Rep. 320 ]. We quote from the syllabus in that case as follows: “A person selling goods to one partner on credit cannot bind the other partner after notice that he will not be bound, and this, though the goods come to the firm and are used by it.”

In Monroe v. Conner et al., 15 Me. 178 [ 32 Am. Dec. 148 ], the same rule is followed, and it is held: “That one partner is not bound by a contract entered into by his copartner after giving actual notice to the party proposing to make it, that he will not be bound thereby, although the fruits of the contract have been enjoyed by the partnership of which he is a member.”

In the case at bar, as we have said, the appellant’s agents, after having failed to secure the signatures of IT. Bardell and G. B. Oregoni to the request for reinstatement of the marketing agreement, and after they had been told by both of the partners that they would not again become members of the association, obtained the signature of Maria Oregoni in the manner which we have stated, and therefore must be held to have obtained her signature with full knowledge of the objections of IT. Bardell and G. B. Oregoni, and yet, so far as the record shows, made no inquiry as to- who were the persons actually constituting the partnership of Bardell & Oregoni, nor did they make any inquiry as to the authority of Maria Oregoni to sign her name to the application for reinstatement, purporting to sign the name of Bardell & Oregoni, by herself. Under such circumstances, no plea of estoppel can be allowed.

While we have not followed the chronological order of the reasons urged by the appellant for reversal, which would

The judgment is affirmed.

Pullen, P. J., and Thompson, J., concurred.