Barsotti v. Imperatrice

This action involves a contract for the sale by the plaintiff to the defendant M. A. Caldaralla Company, a copartnership, of four carloads of grapes. The complaint originally contained three counts. In the first it is alleged that the defendant Imperatrice gave his personal cheek to the plaintiff in payment of the agreed price of the first carload, but that the check was “dishonored and the payment thereof refused.” In the second count it is alleged that the carload of grapes referred to in the first count and a second carload were delivered to the defendants, of the total agreed value of $1,849.77, only '$500 of which has been paid. In the third count it is alleged that upon the

“This certifies that Nello-Barsotti . . . has sold to M. A. Caldaralla Co. all the hereinafter mentioned fruit crops buyers shall find suitable for local eastern markets, . . . delivered at Madera Team, not later than Sept. 10 to start, . . . price 60.00 F. O. B. Madera in car. . . . The seller agrees to pick and deliver all of said fruits at his own expense, in good condition, entirely free from mildew, or smut, or rain, or sand damage and free from any damage, whatsoever, and at the times directed by the buyer. The buyer agrees to pay for said fruit upon completion of the delivery thereof and presentation of weight tags therefor, at the office of the buyers at 419-421 Davis Street, San Francisco, California. . . . This contract is understood by both parties to constitute an absolute sale, but until delivery has been completed seller agrees to and assume all risks of loss or damages of whatsoever kind or nature to any undelivered part of said crop. Time is of the essence of this agreement and no understanding other than herein expressed shall vary or modify the transaction.”

The only breach of the contract by the defendants alleged in the complaint is that they “failed and refused to pay plaintiff for said grapes,” the grapes which had been delivered, “according to said contract or at all.” Since the contract provides for payment “for said fruit upon completion of the delivery thereof” and the complaint shows that delivery had not been completed, the facts alleged therein do not show a breach of the contract by the defendants and are not sufficient to constitute a cause of action.

The evidence shows that the first carload of grapes left Madera for San Francisco September 6th at 8:30 A. M., and the second carload September 8th at 11:25 P. M. September 9th, M. A. Caldaralla Company wired the plaintiff : “Car Grace number 32,587 (the first car) arrived September ninth all molded and fermented will not accept it you had no right to hold that ear there three days for payment according to the contract advise me what you want done with this car.” On the next day plaintiff replied:' “Refer to telegram grapes were not held on track for nonpayment your agent shipped the car himself.” Subsequently the plaintiff sold the remainder of the grapes to E. E. Desmond and then, September 15th, he sent the Caldaralla Company the following telegram:

“Because of your failure to perform under your grape contract with me dated Aug. 26, 1925, I now declare contract cancelled.” The plaintiff testified: “When I find out that I could not get any more shook from Mr. Caldaralla and I had some of those grapes and I went to work and entered into a contract with E'. E. Desmond, and then I sent that telegram;” and that the reason he stopped shipping grapes to the Caldaralla Company was because that company did not furnish him boxes for the grapes. Jack Placía, who was employed by the Caldaralla Company to ship grapes from Merced to San Francisco, testified that, after the shipment of the second carload, he offered to furnish boxes and that the plaintiff replied: “I don’t want any more boxes, because I am through with Mr. Caldaralla.”

The contract provides that the seller shall pick and deliver the grapes “at the times directed by the buyer.” By reason of that provision, the evidence is uncertain as to whether the buyer was in default in failing to furnish boxes at any time prior to plaintiff's sale of the remainder of the grapes to Desmond. But if it be conceded that the evidence is sufficient to prove that the Caldaralla Company was so in default and that the respondent may rely upon such breach of the contract without having alleged it, the judgment must be reversed on other grounds.

The complaint does not allege that the grapes delivered to the defendants were of the quality specified in the contract. The “further and separate defense” of the defendants alleges that the grapes so delivered were “mildewed and moulded and in bad condition.” The burden was on the plaintiff to prove that such grapes were of the quality agreed upon. The contract provides that the grapes shall be “in good condition, entirely free from mildew, or smut, or rain, or sand damage and free from any damage whatsoever.” The defendants introduced evidence to the effect that such grapes were “mouldy, rotten and leaky, ... in very bad shape, . . . very soft,” with some red berries and “quite a few” green berries; that “most of the grapes was red berries and soft berries and the poorest Zinf andel grade in the county.” In plaintiff’s behalf, the man who had charge of picking the grapes testified that when the grapes were picked their condition was “pretty good”; that he did not see any red or green or soft berries among them or any sand on them. The plaintiff testified: “I know they were good grapes. I know they were first-class grapes. ... Q. You don’t know anything about grapes, do you, or the grape business, do you ? A. No, sir. . . . Q. You will say that those grapes were all sound and not in a decayed condition and not mouldy? A. I will say that they was A-l grapes. I don’t know about mouldy, but what was there was very good grapes.” There was other evidence to the effect that the grapes were all United States grade number 1. The plaintiff testified that he sold the remainder of the grapes, consisting of two carloads, for the eastern market; that they were inspected by a United States inspector, who'graded one carload as number 1 and the other as number 2. No attempt seems to have been

Imperatrice testified that he was not a member of the defendant partnership. Counsel for plaintiff asked him if he ever held himself out as such a member. On his replying in the negative, he was asked if, during the preceding summer, he did not say to Mary Faso that he “had been a partner of Caldaralla, but the partnership had been disbanded.” Imperatrice answered that he had not made the statement. Thereafter counsel for the plaintiff called Miss Faso as a witness and asked her whether she had a conversation with Imperatrice at the time mentioned. The question in no manner indicated the subject matter of the conversation referred to. She replied in the affirmative and was then asked to relate the conversation. Counsel for the defendants said: “We object upon the ground that the proper foundation has not been laid, and it is incompetent, irrelevant and immaterial.” Counsel for plaintiff replied: “It is an impeaching question.” The court overruled the objection and the witness answered: “There was a deal made between my mother and some other man here in this town, some other business man, and it seems like that this deal was made and Mr. Imperatrice, to my understanding is the man that was so dealing with my mother, and dealing for pears, that was sold to Mr. Caldaralla and Mr. Imperatrice. They were sold by the ton, and was to receive a check for these pears, and the deal was received on consignment, which

The judgment is reversed, and the trial court is directed to grant the plaintiff leave to file an amended complaint, if he is so advised.

Thompson (R. L.), J., and Plummer, J., concurred.