IN BANC. Action by V. Winchell against the Pacific Fruit Produce Company. Judgment for plaintiff and defendant appeals.
AFFIRMED. REHEARING DENIED. On February 14, 1930, plaintiff, a fruit grower in Hood River county, entered into a contract with defendant, a Washington corporation engaged in the business of buying and selling fruit as a factor and broker.
The contract provided for the defendant making certain advances to the plaintiff in caring for and getting his fruit ready for market and for the repayment of these advances with 8 per cent interest. In addition to said contract and at the same time and as part of the same transaction, and as further security, for such advances, plaintiff executed a chattel mortgage in favor of the defendant covering all the fruit to be grown by him during the season of 1930. The contract gave the defendant the sole and exclusive agency for the sale of the fruit.
The parts of the contract material herein, are paragraphs 3, 17, and 18 thereof:
"3. Grower hereby employs Company as his sole and exclusive agent and factor to sell and market above described crop, upon the terms and conditions hereinafter set forth. Company accepts such employment and Grower agrees to pay and Company agrees to accept as compensation for marketing services, the sum of 10c per box * * * *Page 554
"17. Grower agrees to repay to Company all sums of money advanced him by Company or expended by Company in Grower's behalf or becoming due from him to Company, with interest at the rate of eight per cent (8%) per annum from date of said advances until paid, and in the event the proceeds of sale of the above mentioned crop shall be insufficient to pay all sums in full, Grower agrees that he shall personally be liable for any deficiency remaining unpaid. All sums of money becoming due Company hereon shall become due and payable when said crop is harvested but in no event later than nine months from the date hereof, providing that if said crop should be destroyed, or if Grower should abandon said crop, * * * or if for any other reason Company shall deem itself imperfectly or insufficiently secured for the advances made hereunder, or if default be made in any of the terms and conditions of this contract, then all sums becoming due hereunder shall become due upon demand.
"18. Company agrees that it will at the time said goods are ready for shipment, stand ready to make Grower a cash offer to purchase all or any part of said goods, the acceptance of which offer shall be optional with Grower. No sale of said goods is to be made or consummated by Grower except through Company as Grower's agent. If Grower shall procure a purchaser for said goods, Company shall be put in communication with said purchaser, when it shall, subject to the other terms hereof, consummate said sale on behalf of Grower; * * *"
Plaintiff alleges that he thereafter found a buyer for the fruit (Duckwall Bros., Inc.) who agreed to buy at certain fixed prices which would have returned to plaintiff the sum of $15,884.03 net. In accordance with paragraph 18 supra, he informed the defendant of the name and place of business of the buyer, and the offer made for the fruit and requested it to consummate the sale to said purchaser. The defendant failed to take any steps to make the sale and long thereafter *Page 555 sold the fruit to other parties and made returns and final payment thereof to plaintiff in the sum of $12,881.79. Plaintiff prays judgment for the sum of $2,952.24, as damages, that being the difference between the above-mentioned two sums.
Defendant in its answer admits the allegations of the complaint but denies that plaintiff put it into communication with said Duckwall Bros., Inc., or any other buyer who was willing and able to buy the fruit. It further alleges that it had advanced to plaintiff on said contract, prior to the time plaintiff claims to have produced a buyer, a sum in excess of $10,000 in accordance with the contract alleged in plaintiff's complaint. The reply admits the new matter in the answer.
The cause was tried to a jury who returned a verdict in favor of plaintiff for the full amount prayed for. Judgment was entered on the verdict and defendant appeals.
There is no dispute about the contract, the amount of fruit delivered, the sum paid by defendant nor the total amount net that the fruit would have brought if sold at the price that the buyer, claimed to have been produced by the plaintiff, offered.
Defendant, before answering, filed a demurrer to the complaint on the grounds that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled.
After the jury was sworn and the first witness called on behalf of plaintiff, defendant objected to the introduction of any evidence for the reason that the complaint did not state facts sufficient to constitute a cause of action, which objection was overruled.
When the testimony was all submitted, the defendant moved for a directed verdict, which motion was denied. Defendant thereupon requested that certain *Page 556 instructions be given the jury, each one of which was simply an additional request for a directed verdict.
After judgment was entered, defendant moved for a new trial, which motion was denied. To each of these rulings defendant saved an exception. The errors complained of in each of the adverse rulings of the court are all raised in defendant's motion for a directed verdict.
The real controversy arises over what is a fair and just construction of the contract entered into between the parties. Every bailee of personal property must be governed in his action towards such property, by the particular contract of bailment under which he holds. It makes little difference whether he is called bailee, factor, agent, mortgagee in possession, or any other legal term that denotes such relationship.
The evidence clearly discloses that plaintiff opened up negotiations with Duckwall Bros., Inc., and was quoted the prices alleged in his complaint, that he brought this offer and knowledge of the place of the business of the prospective buyer to the attention of defendant and requested its manager to consummate the sale. This put the defendant into communication with an intending purchaser.
There is no testimony to the effect that defendant did not know who Duckwall Bros., Inc., was or that it was not fully informed as to the intending purchaser's responsibility and ability to buy and pay for said fruit at the prices quoted. Defendant made no complaint on these grounds.
Mr. Waterbury, the manager for and only witness on behalf of defendant, testified, in effect, that he was informed of the Duckwall Bros., Inc., offer but that "we expected more money for the fruit because we believed that Duckwall was a bear on the market at *Page 557 that time," that he had consulted several others including his competitors and came to the conclusion that a better price could be obtained, "so it was firmly impressed in my mind that the fruit had a greater value than the prices that Duckwall was quoting at that time," that he had no recollection of the plaintiff ever making a demand that defendant sell to Duckwall. "I recollect an expression of his desire, but not an order or a demand." On cross-examination he remembered that Mr. Winchell "said he did not want to take chances and gamble on that crop." The gist of his testimony, according to his own story, is that he felt so sure of getting a better price than Duckwall Bros., Inc., offered that he overruled the "desire of plaintiff to sell at that offer," and made no effort to consummate the sale. In other words, he refused to "O.K." the expressed desire of Mr. Winchell. He was willing to gamble on plaintiff's crop, even if plaintiff was not.
The facts herein disclose that this was not a simple consignment of the fruit to the factor to sell without instructions. The contract sets out the terms and conditions on which the goods were transferred. Each party had a right to expect from the other a compliance therewith.
The fact that defendant, as factor, made advances to the consignor did not give it authority to refuse to make the sale unless such sale would jeopardize such advances or destroy the lien thereof without payment. This is the doctrine taught in 11 R.C.L. 774; Brown v. McGran, 39 U.S. 477 (10 L.Ed. 550); Feildv. Farrington, 77 U.S. 141 (19 L.Ed. 923); Heffner v.Gwynne-Treadwell, 160 Fed. 635.
There is no claim in the instant cause that if defendant sold to the Duckwall Bros., Inc., at the prices *Page 558 quoted the plaintiff that it would not be repaid its advances. It is no defense to say to plaintiff that if he repaid the advances he could do as he liked with the fruit. Plaintiff was entitled to have defendant carry out its contract. When he produced and brought into communication with the defendant, a buyer, at a price satisfactory to him, it was the duty of the defendant, under paragraph 18 of the contract, to consummate the sale. Defendant would have the right to withhold, from the money obtained from the sale, its advances and other items to which under the contract it was entitled.
There is some question raised regarding the ten cents a box that defendant was entitled to under paragraph 3 of the contract. Plaintiff testified that the prices quoted by Duckwall Bros., Inc., would net him $15,834.03. He received from the sale, by defendant, $12,881.79. Mr. Waterbury, manager of defendant, testified, in answer to the question, "* * * state if you know whether or not, your accounting included all the storage and warehouse commission and one thing and another, covered by the contract, did you take that off?" He answered, "Yes, it was all taken off." It would appear that the defendant had collected all its charges including the 10 cents a box warehouse charges.
The plaintiff is not attempting to rescind the contract, but is affirming it and asking damages by reason of its breach. The cases cited in appellant's additional brief, on rescission of a contract, are not in point in the instant controversy.
Finding no error, the judgment will be affirmed.
It is so ordered.
BELT and BROWN, JJ., not sitting. *Page 559
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