Klamath Lumber Co. v. Co-operative Land & Trust Co.

The action was to recover the sum of six hundred dollars for certain sweet potato crates alleged to have been sold and delivered to defendant. The main controversy is as to whether the crates were sold to defendant or to a certain Mr. Gutman, the evidence being sharply conflicting on this point. Closely related to the foregoing is another contention by appellant that if it ever made any promise to pay plaintiff for the crates it was a conditional one—that is, it would pay if Gutman did not, and, the proviso not being in writing, it was void by reason of subdivision 2 of section 1624 of the Civil Code.

Preliminarily, we may mention certain facts that are undisputed. Plaintiff was engaged in the business of retailing lumber and box materials and the defendant, principally in colonizing land although organized for the purpose also of buying and selling personal property. One of the latter’s customers was George Gutman, to whom it had sold a tract of land, the payment therefor to be made out of the crops raised. Said crops were to be marketed in the name of the corporation and the proceeds divided, one-half to be Gutman’s and the other to be applied first on the interest and the balance on the purchase price. Among defendant’s employees was a salesman by the name of Y. H. Gerard, who testified that during the time in controversy one Mr. Cone had control of defendant’s business at Merced where the crates were sold. As to the sale itself we must, of course, accept the account that favors respondent’s contention. Therefore, we refer specifically to the testimony of J. IT. Routt, the president and manager of plaintiff: “About September the fifth to the tenth, in 1909, Mr. Gerard came to my office with a stranger that he introduced as Mr. Gutman, and said: ‘We want to get your price on sweet-potato crates,’ and said that the Cooperative Land & Trust Company had sold Mr. Gutman a piece of land; ... he spoke of Mr. Gutman as being a model farmer, the amount of crop was then growing and I then gave him prices on sweet potato crates, carload lots to be delivered at Atwater or Livingston, the price named was fifteen cents

It would be difficult to select more apt language than the foregoing to express an agreement of sale to the defendant. The contract was made entirely with Mr. Gerard who assumed to represent appellant; Mr. Routt declared that “if you people (referring to defendant) will pay me, we will give you the time,” and Gerard thereupon said, “that is all right, we will do that.” Furthermore, it appears that Routt understood that he was selling to the Co-operative Land & Trust Company and that he looked entirely to it for payment. It thus appears that the creditor parted with value and entered into the obligation in terms and under circumstances

It is equally plain that, according full credit to the testimony of Mr. Routt, no question of guaranty could arise. The only other consideration remaining as to the obligation of defendant to pay the purchase price of the crates involves the authority of Gerard to make the contract for defendant. There is no doubt, however, that Cone had full power in the premises and his statement to Routt would bind the company and preclude any denial of Gerard’s authority after plaintiff, in reliance upon it, had sold the crates.

In view of the foregoing, we do not see how it can be seriously argued that the evidence is insufficient to support the conclusion that the crates were sold to defendant, that it promised to pay for them and that upon such promise plaintiff relied in delivering said property.

The alleged errors in the admission and rejection of testimony are hardly of sufficient gravity to merit specific notice. It was proper for plaintiff to show that Gutman was in Oregon in explanation of the circumstance that he was not called as a witness. Besides, the fact sufficiently appeared without objection.

The following question was asked of Mr. Routt: “And as president of the corporation, as the manager of the plaintiff in this action, Mr. Routt, did you have any agreement with the defendant in this action in the year 1909 ’ ’ 1 Technically speaking, the question probably was objectionable, but the answer was entirely without prejudice as, from the facts testified to by the witness, the conclusion necessarily followed that the agreement was with defendant and said testimony made it obvious that such was the opinion of the witness.

We can see no valid objection to this instruction, given by the court on request of plaintiff: “Plaintiff brings this action to obtain a judgment against defendant for the sum of six hundred dollars alleged to be due plaintiff from defendant for the sale of 4000 sweet potato crates for which plaintiff alleges defendant promised to pay; that defendant promised to pay it at the rate of fifteen cents per crate, no part of which sum plaintiff alleges has ever been paid.” It was proper for the court thus to state the nature of the action, although it is quite probable that the jury had already been fully advised of the claim of each party. There could be no

The instruction as to an original obligation and the principal debtor is substantially in the language of section 2794 of the Civil Code and, as a principle of law, is unobjectionable. That it embodied the theory of plaintiff as to the character of the transaction in question cannot be doubted and that there was evidence to support that theory has already appeared. It is well settled, of course, that either party has the right to have an instruction given to the jury, based upon his theory of the case, if there is any evidence to support it. (Buckley v. Silverberg, 113 Cal. 673 , [ 45 Pac. 804 ].)

We think it is plain enough to what fact the court referred in this instruction: “If you are satisfied from all of the evidence adduced in this case that the promise of defendant, if any was made, was an original promise to pay for the crates and not a conditional one, I charge you it is your duty to find that fact in favor of plaintiff in this action.” It could hardly be understood as meaning otherwise than an instruction to find that the promise of defendant was ‘ ‘ an original promise to pay for the crates” if the jury were satisfied from the evidence that an original promise was made by defendant. This was the important issue in the case and while the instruction, embodying as it does, such a truism, was not necessary, it could have done no harm. It may be said in this connection that the distinction between a guaranty and an original promise was fully set forth in instructions given by request of defendant and nothing was left uncertain as to the meaning of those terms.

As we view it, the only ground for plausible criticism as to the instructions is afforded by this direction: “The fact that the crates in question were furnished to Gutman by the plaintiff is not of itself absolutely sufficient to show conclusively that the promise of defendant, if any were made, was'a conditional one.” As to the statement of fact in the first part of the instruction, it may be said that there was no dispute that the crates were “furnished” to Gutman. They were shipped to him for use on the land that he had purchased from appellant. In fact, it was the contention of

There is more reason for contending that the instruction is somewhat argumentative and for that reason should have been omitted, but it is entirely apparent from the whole charge, full, fair, and complete as it was in its entirety, that the jury were not misled by the court in any respect.

We feel satisfied that there is no substantial merit in any of the points made by appellant, and the judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.