Scott v. California Farming Co.

Davidson Bros, bought, under a conditional sales contract from Miller & Lux Incorporated, a substantial acreage of grain and cotton land. The California Farming Company, the vendees’ operating company, owned and controlled by them, leased the entire property and carried on all farming operations. Davidson Brothers

From this point there is considerable conflict in the testimony as to what actually transpired. It is admitted, however, that the Davidsons assigned their vendees’ interest in the contract of sale to Miller & Lux. The Davidsons testified to the effect that this assignment was given upon the vendor’s assurance that they would be given a lease for the balance of the crop season and witnesses for the vendor stated that while the matter of the lease was discussed, it was not a condition of nor the consideration for the assignment. Officials of Miller & Lux came upon the land at the time of the assignment and insisted that operations for planting cotton cease; that all labor claims be paid to that date; and that all tools and equipment be either moved from the property or brought in and stored at a central place to be removed within thirty days’ time. Arrangements were also made for the renting of certain of the farming tools and the purchase of cottonseed from the lessee. The lessee was paid by Miller & Lux for these items. The testimony of the Davidsons is to the effect that they considered all of these transactions formalities connected with the assignment and preliminary to giving them the lease on the property. At any rate negotiations for the lease failed and the property was sold to Hammonds & Edwards under a conditional sales contract whereby Miller & Lux undertook to protect the new purchasers against the crop mortgagee’s claim.

The appellants, Miller & Lux and Hammonds & Edwards, submit that they are entitled to the proceeds of this crop on the theory that the Davidson contract was terminated because of the latter’s default; that they surrendered the contract and that Miller & Lux took actual and physical possession of the land and were in possession and harvesting the crop" when dispossessed by the receiver. It is further submitted that the finding of the trial court that the California Farming Company remained in possession is not supported by the evidence.

Appellant’s first proposition might well be accepted if the uncontradicted facts supported it, but the trial court found upon conflicting evidence that the vendor had waived the “time of the essence” provisions of the contract; that there was no restoration thereof; and that the attempted restoration, whereby vendees were given thirty days within which to pay almost $46,000 then in default, was unreasonable; and further that the attempted restoration and forfeiture was waived by the vendor. There is ample evidence to support these findings and the further express finding that the vendor waived the attempted forfeiture by further negotiations with the vendees and by accepting from them

As to the further point of the appellants, there is conflicting evidence in the record as to who was in possession of the property. It cannot be said that the testimony supporting the finding is so slight or so inherently improbable as to be insufficient to create a conflict. The grain crop was in need of no further care at the time of the alleged change of possession. There is testimony that the lessee did some work in connection with the cotton planting and it is undisputed that the lessee was attempting to harvest the grain when the receiver stepped in. The trial court resolved all of these conflicts against the appellant and all parties are bound thereby on appeal.

The judgment can be sustained upon either or both of two theories. First, if Davidson Bros, personally or through their lessee remained in possession, as found by the trial, court, they were by authority of California Delta Farms, Inc., v. Chinese American Farms, 204 Cal. 524 [ 269 Pac. 443 ], and Grossman v. Yip Wing, 62 Cal. App. 121 , 128 [ 216 Pac. 634 ], owners of the crop as bona fide adverse tenants and hence their crop mortgagee would be entitled to the money in the receiver’s hands. On the other hand, if, for the purpose of argument, the findings as to possession cannot be sustained, the appellants are faced with the finding that the vendor’s attempted forfeiture was of no effect and was waived by the acceptance of an assignment of the Davidsons’ vendees’ interest, which they took with knowledge of the outstanding crop mortgage of the grain company.

The provision of the contract making time of the essence thereof and providing that a waiver of. any breach should not be deemed a waiver of this term of the contract, as to the performance of other 'covenants, or of the making of other or future payments, does not alter the situation because there was clearly a waiver of the time requirement and no violation or default of other covenants or failure to

The judgment is affirmed.

Barnard, P. J., and Jennings, J., concurred.