Allred v. Hinkley, 8867
| Decision Date | 15 July 1958 |
| Docket Number | No. 8867,8867 |
| Citation | 8 Utah 2d 73,328 P.2d 726 |
| Parties | d 73 H. L. ALLRED, Plaintiff and Respondent, v. Clifford C. HINKLEY, dba Union Seed Company of Burley, Idaho, Defendant and Appellant. |
| Court | Utah Supreme Court |
Herbert F. Smart, Salt Lake City, for appellant.
Ray E. Nash, Vernal, Edward W. Clyde, Salt Lake City, for respondent.
Defendant, Clifford C. Hinkley, dba as Union Seed Company, hereinafter called the Company, appeals from a judgment in the district court of Duchesne County awarding $15,082.28 on claims of 26 seed growers for seed delivered to Wayne Malin, and through him to the Company at Burley, Idaho. The plaintiffs are seed growers near Roosevelt, Utah, who brought this suit on their own claims and similar claims of other growers as assignees. The Company paid the full purchase price or what it thought was the agreed purchase price of the seed in question to Malin, its special agent for the purchase of such seed, but Malin failed to pay part of the money received for each lot of seed to the growers. A judgment was also awarded against Malin for these and other claims, and Malin is now in bankruptcy.
There is practically no dispute in the evidentiary facts. Most of the testimony was given by Malin. There was also received in evidence answers to interrogatories submitted by plaintiff and extensive book records. Prior to 1950, when the Company made him its special agent to purchase seed for it, and thereafter through the year 1956 when his failure to account to seed growers for moneys paid to him by the Company for them, became known, Malin, operated a retail farmers' supply business with storage facilities. At first his business was known as the Roosevelt Flour Mill, but during the last few years he operated it under his own name. The company furnished Malin with a machine called a clipper for rough cleaning of seed. It obtained a license for him as its agent to purchase seed and supplied him with bags to be furnished to the growers in which to bag their seed. If the seed, which was placed in the Company's bags, was sold to the Company no charge was made for the bags, but if sold elsewhere a charge was made for these bags. The Company also furnished blank draft forms, forms for grading seed with Company Loading Sheet Forms for truck load shipments of seed to the Company, and various other recordkeeping forms.
When seed was brought to Malin by a grower he tagged it with a lot number and stored it. He then sent a sample to the Company. Sometimes he would rough clean the sample in the clipper. From the sample the Company would grade the lot, testing it for germination and other qualities and usually would make an offer to purchase such lot of seed at a specified price per pound for cleaned seed. If the offer was accepted Malin would immediately send the seed to the Company in truck loads. There it was cleaned and weighed and the total purchase price determined. Sometimes Malin delivered a draft from the Company for an advance on the seed which was still growing in the fields, sometimes he drew for an advance on seed as it came into his warehouse, and other times he made further advances when the grade was communicated to him and the offer made. Sometimes a grower wished to wait for a higher price and the offer was not accepted until several months later. Other times the grower wishing to wait for a better price definitely instructed Malin to hold his seed and not sell it until so ordered. In other cases the evidence fails to show an acceptance of the Company's offer, but does not show that the grower specifically refused to accept such offer. If the offer was accepted by the grower immediately it would take from one to two weeks after the seed was delivered to Malin before the purchase price was determined. For the sample was first shipped, then the seed graded, the offer made, then the seed shipped to Burley where it was cleaned and the weight of the cleaned seed determined. In some instances the grower waited for as long as four months before accepting the Company's offer. In cases where the grower refused to accept any offer of the Company the seed was delivered to Malin and it was in some cases several years before the grower learned that Malin had without the grower's consent sold the seed to the Company. In such cases Malin represented to the grower that the seed was being held either in his own or in the Company's warehouse.
Originally the Company made the advances and purchase price payments by honoring drafts made by Malin in favor of the grower. Since the local banks would not honor such drafts until accepted by the Company several days were required after the draft was issued before it was paid. In response to complaints by growers of this delay Malin began making payments by his own personal check and making the Company's drafts payable to himself. This the Company later authorized. All the growers whose claims are involved in this action knew of this change in the procedure, but there is no evidence that any of such growers asked for such change or complained about the delay.
This case presents two questions: (1) Is the Company liable for the money which Malin failed to remit to the grower, where the grower accepted the offer of the Company to purchase the seed? (2) Is the Company liable for the value of the seed over and above the payments and advancements made to the grower where Malin delivered such seed to the Company, falsely representing to it that the grower had accepted its offer to purchase?
We consider the second question first: The...
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