Lompoc Produce & Real Estate Co. v. Browne

This is an appeal by the defendant from a judgment in favor of the plaintiff for $16,505.36 damages for the alleged breach of a contract for the sale of a crop of beans. The court directed the jury to find for the plaintiff, leaving to them the determination of the amount of the damages. The contract is in writing and was entered into upon February 13, 1917. It provides that the defendant shall grow for the plaintiff certain quantities and varieties of beans at a specified price. It acknowledges receipt by the defendant of two thousand dollars to apply upon the purchase price of the beans and also provides that the conditions printed on the back thereof are a part of the contract. Among those conditions is one to the effect that the plaintiff agrees to furnish the defendant sufficient seed for the crop bargained for, said seed to be selected by the defendant, and for the seed furnished by the plaintiff the defendant agrees to return with the crop an equal amount without charge as the equivalent of the seed furnished. The contract provides that a certain price was to be paid for beans delivered to the defendant on or before'October 1, 1917, and a different price was to be paid for beans delivered after October 1, 1917. It is also provided that delivery should be made on or before November 1, 1917. On October 18, 1917, defendant wrote to the plaintiff refusing to perform the contract and returning the two thousand dollars advanced to him thereunder. The plaintiff brought this action on October 25, .1917.

[1] The defendant demurred to the complaint and urged as one ground of demurrer that the action was prematurely instituted because delivery was to be made on or before November 1, 1917, and the suit was brought before that time. This point was also urged upon the motion for a non-suit made at the conclusion of plaintiff’s proof. We believe this point is not well taken. The complaint set out the contract, and alleged that on October 18th the defendant had renounced the contract and refused to be bound by it or to deliver to plaintiff any portion of the crop, and that at said time a portion of the crop, approximately two hundred thousand pounds, was sacked and ready for delivery, and that the balance was lying on the ground ready for sacking and delivery. We think that the absolute refusal of

[2] The plaintiff alleged completé performance by it of all the conditions of the contract by it to be performed. In regard to the provision in the contract that the plaintiff should furnish seed to the defendant, which seed should be selected by the defendant, the plaintiff proved thát no seed had been selected by the defendant and no request for any seed or for the privilege of selecting any seed had been made by the defendant to any authorized agent of the plaintiff company. The defendant denied that the plaintiff had performed its part of the contract and introduced certain testimony of the defendant to the effect that he had selected certain seed from samples in the possession of one Grannas, who, it was claimed by defendant, was ostensibly acting for the plaintiff company, and that defendant had requested Grannas to furnish such seed and that Grannas had refused because of the high cost of the same. But by his own testimony, defendant also put in evidence facts which clearly indicate a waiver of this condition concerning the seed, even though we concede that the testimony established-an ostensible agency in Grannas to act for the plaintiff company. Plaintiff, thereupon, at the close of defendant’s ease, made a motion to withdraw from the jury the issue of plaintiff’s alleged breach of the seed provision, and upon this motion plaintiff urged that even though it be conceded that the seed provision had been breached, yet it appeared from the defendant’s own testimony that he had waived that breach. We emphasize the fact that it was

The defendant and appellant objects that the verdict and judgment were obtained upon an issue of waiver, and that, as no waiver was pleaded, the plaintiff was not entitled to judgment upon this issue when the pleadings alleged performance by the plaintiff and not a waiver by the defendant. While we have not been, cited to any case involving this precise question of pleading in relation to waiver, a similar question has arisen in certain cases involving the pleading of an estoppel. In the ease of Blood v. La Serena L. & W. Co., 113 Cal., at page 229, [ 41 Pac. 1017 , 45 Pac. 252 ], it is said that had the plaintiff under the circumstances been called upon to rely upon an estoppel in order to maintain his action against defendant at all, it would have been necessary, of course, for him so to have pleaded.But such was not his cause of action, for he successfully made out a' prima facie case, and might, without pleading it, use the evidence in estoppel to prevent the corporation from maintaining what as against its acts would be an unjust and unwarranted defense. In the case of Donnelly v. San Francisco Bridge Co., 117 Cal. 417 , at page 422, [ 49 Pac. 559 , 560], it is said: “ ... a party is not bound to plead an estoppel where he is without knowledge that Ms demand must ultimately rest upon it.”

[3] In the present case the plaintiff alleged and relied upon performance. It made out a prima facie case. The authority of Grannas, from whom it is asserted defendant selected and requested the seed, rested only upon an ostensible agency. It was not shown that he was the agent of the plaintiff, in fact, but plaintiff throughout the trial denied his authority and objected to proof of any dealings with him by the defendant. The plaintiff, therefore, in its main case, relied upon the fact that the defendant had not selected seed from any of its authorized agents, and, therefore, there was no breach of the condition to furnish seed. The defendant met this by proof which, for the purpose of this discussion, let us concede established an ostensible agency of Grannas to act for the plaintiff company, and then showed that he selected and requested seed from Grannas. The plaintiff, while denying the authority of Grannas to act for it in this matter, may rely upon the

[4] Furthermore, the defendant could not have been surprised or injured by this variance between the pleadings and proof, because the evidence concerning waiver was largely his own testimony. ’ He may not complain that his own testimony is construed most strongly against him, and he cannot be damaged by a consideration of the facts which he himself has admitted. [5] If it be true that there is a variance between the allegations and the facts shown, then it is apparent that defendant could not have been prejudiced by the variance, because if the complaint had been amended to conform to the proof, the result would have been the same, and no good would result from sending the case back for a new trial, as it is apparent that the result would necessarily be the same, under the evidence of the defendant himself. It is said in the case of Foster v. Carr, 135 Cal. 83 , [ 67 Pac. 43 ], that even where there is a variance such as ordinarily would be ground for reversal, yet if there is no dispute about the facts, and the evidence could not be varied upon a new trial, there is no prejudicial error which requires a reversal of the judgment. (Code Civ. Proc., sec. 469.) A judgment will not be reversed or a new trial granted for mere error when it clearly appears that the appellant has sustained no injury therefrom. (Edwards v. Wagner, 121 Cal. 376 , [ 53 Pac. 821 ].)

[6] Appellant also contends that the alleged waiver by defendant should have been submitted to the jury as a question of fact, and that the directed verdict was, therefore, improper. While waiver is a mixed question of law and fact, when, however, but one inference can be drawn from the facts, it is not error for the court to charge the jury that these facts constitute waiver. (40 Cyc. 270; Spring Garden etc. Ins. Co. v. Evans, 9 Md. 1 , [ 66 Am. Dec. 308 , 315].) The uncontroverted evidence before the court in the present case was such that it would have been the duty of the court to set a contrary verdict aside as unsupported by the evidence. A directed verdict was, therefore, proper. (Estate of Baldwin, 162 Cal. 471 , [ 123 Pac. 267 ]; Meyer v. Lovdal, 6 Cal. App. 369 , [ 92 Pac. 322 ]; Bunt v. Sierra Buttes Gold Min. Co., 24 Fed. 847 , [ 11 Sawy. 178 ].)

The judgment is affirmed.

Brittain, J., and Haven, J., concurred. i

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 14, 1919.

All the Justices concurred, except Wilbur, J., who was absent.