Chastain v. Belmont

• Decision Date: 11 June 1954
• Citation: 271 P.2d 498,43 Cal.2d 45
• Parties: CHASTAIN v. BELMONT. L. A. 23097.
• Court: California Supreme Court

Page 498

271 P.2d 498

43 Cal.2d 45

CHASTAIN v. BELMONT.

L. A. 23097.

Supreme Court of California, In Bank.

June 11, 1954.

Rehearing Denied July 7, 1954.

Harvey, Rimel & Johnston and Fred D. Johnston, Santa Ana, for plaintiff and appellant.

G. V. Weikert, Los Angeles, and S. B. Kaufman, Anaheim, for defendant and respondent.

CARTER, Justice.

Plaintiff, A. W. Chastain, brought an action for damages for conversion against defendant, Frank Belmont. Defendant cross-complained for 'Money on a Book Account and for Liquidated Damages.' Findings of fact, conclusions of law, and a judgment were entered, and both parties appealed.

The pleadings show that the parties entered into a certain agreement entitled a 'Consignment Contract' in August, 1949. The construction and interpretation of this contract is, essentially, the only point involved in the case.

The contract provided, in part, as follows:

'In consideration of the mutual covenants herein assumed, the undersigned Crower (A. W. Chastain) agrees to and does hereby consign to Frank Belmont, doing business as Granda Packing House hereinafter referred to as Shipper, of Anaheim, California, all oranges now growing and to be grown during the term of this contract of his citrus orchard consisting of 15 acres. * * *

'This contract covers the citrus fruit growing and to be grown on said grove on and after the date of this contract and until this contract is terminated by the Grower in the following manner: The Grower, if he is not indebted to the Shipper, may terminate this contract by giving Shipper written notice of that effect during that last ten days of November of any subsequent year and in such event this contract shall be automatically converted into a prorate contract, covering the fruit to be grown on said orchard during the following season.

This contract covers merchantable fruit only and the Shipper or his agent shall be the sole judge as to the merchantability of said fruit, and shall decide at the time of processing what shall be accepted as merchantable fruit. Since frozen fruit goes into by-products, same is not accepted as merchantable. * * *

'Shipper agrees to pay to the Grower the total amount received from the sale of said fruit, after deducting therefrom all sums of money (1) paid out or advanced hereunder, or (2) loaned or advanced to or for the use and benefit of the Grower, or (3) paid out for picking and processing said fruit, also deducting * * * (enumerated charges). Should the fruit hereby consigned be not sufficient to repay said Shipper all sums, amounts or charges above mentioned, Grower agrees to pay any balance to Shipper within 10 days after notification by Shipper of the amount due, and in the event of his failure to pay same within 10 days after such notification the term of this contract shall be extended to cover the following season and shall thereafter be further extended to cover succeeding seasons while Grower remains indebted to Shipper. * * *

'Grower agrees to pay the Shipper as liquidated damages, the sum of thirty-five cents (35cents) for each and every commercial package or box (known to the trade as 'standard field box') or the equivalent thereof of citrus fruit, which the Grower may dispose of, sell, market or consign to any person other than the Shipper named herein or that Grower may remove or permit to be removed from said citrus orchard or fail to deliver to said Shipper, it being specifically agreed that it is impracticable and extremely difficult to fix the actual damage which would there be suffered by the Shipper.

'Shipper guarantees to Grower 1.00 perfield box for 3519 cu. inch box ¹ for all citrus fruit received and accepted as per contract for and during current season only.

'This contract supercedes (sic) and supplants all preliminary or other prior arrangements or agreements, oral or written, and no verbal representation or guarantee by either party or the agent of either party to the execution of this agreement or during its performance, shall be recognized by, or binding upon, either party. The terms of this contract cannot be changed or altered by any provisions added hereto unless such additional provisions are personally approved in writing by the Grower and Frank Belmont.' (Emphasis added.)

This contract was signed by A. W. Chastain, as Grower, and by Herb Miller on behalf of Granada Packing House. On the back of the copy of the contract retained by Chastain were these words: 'This contract covers 1949 crop only. Herb Miller.'

Chastain sued for damages for conversion alleging that Belmont had picked 1226 field boxes of Valencia oranges of Chastain's 1950 crop. Belmont's cross-complaint alleged the written contract; that Chastain was indebted to him in the sum of $5,297.60 the balance due him by reason of a $6,000 advance made to Chastain at the time the contract was entered into; and for liquidated damages under the contract at the rate of 35cents per box for the balance of the 1950 crop of Valencia oranges which Chastain had withheld from him and disposed of elsewhere.

It is Chastain's position that the $1 field box guarantee applies to all oranges picked by Gelmont. Belmont, on the other hand, contends that the guarantee applies only to merchantable fruit as to which he, as Shipper, was the sole judge. Under Chastain's theory, he admittedly owed $1,034, which was allegedly the balance due Belmont from the $6,000 advance made after the various deductions had been taken care of.

The trial court concluded (the findings of fact will be set forth at length in the succeeding pages) that the contract was, in reality, one of purchase and sale; that it was in effect and covered the 1950 crop; that Belmont owed Chastain $1.00 per box for all oranges picked by him in 1949 and 1950; that Chastain owed Belmont, as liquidated damages, the sum of 35cents for each of the 2,049 boxes which he had prevented Belmont from picking and had disposed of elsewhere. Belmont was awarded judgment on his cross-complaint against Chastain in the sum of $620.79 together with costs. Belmont appeals from the judgment only in so far as it awarded him the sum of $620.79 instead of $5,085.14 plus interest. Chastain appeals from the judgment only in so far as it awarded Belmont liquidated damages and costs.

Belmont's Appeal

Belmont contends that under the consignment contract the guarantee was limited to that portion of the 1949 crop of fruit classified by him as merchantable and that certain findings of fact made by the trial court with reference to the contract were confusing, conflicting, self-contradictory and unsupported by the evidence.

Finding XX complained of found as true all the allegations of Chastain's first, second and third affirmative defenses to Belmont's cross-complaint except the allegation that the contract was one of consignment. As to the contract, the court found it to be one of purchase and sale.

In the first affirmative defense just referred to, Chastain alleged that he had at first refused to sell his 1949 crop of oranges when approached by defendant's agent because he had been offered a guarantee of $1 per smaller field box net on the trees and that he had so advised defendant's agent. Chastain alleged that defendant, through his agents and servants, represented to him that if he would execute the consignment contract, 'cross-complainant would guarantee to cross-defendant a minimum of $1.00 per field box for a 3519 cubic inch box,' and that after certain deductions were made if the fruit when sold 'brought sufficient money, not only to meet the guarantee of $1.00 per box, but to pay said costs and expenses, that the additional returns would then be paid to cross-defendant; that cross-defendant agreed to cross-complainant's proposal.' It is also alleged that when the contract was presented to him, defendant's agent represented that the contract expressed the oral agreement of the parties; that these representations were false and were made to cheat and defraud him and with the intention that he rely thereon; that had he not believed the representations he would not have executed the contract or agreed to sell his fruit to defendant; that he did not learn that the contract did not confrom to the oral agreement until he received a statement from the defendant in January, 1950. It is also alleged that immediately upon ascertaining the number of field boxes which had been picked by defendant, he offered to repay the defendant the difference between the number of field boxes picked at the guaranteed price of $1 per box and the sum of $6,000 advanced by defendant.

In Chastain's second affirmative defense, it is alleged (after incorporating the allegations of the first two paragraphs of the first affirmative defense) that at the time of the execution of the agreement, defendant and his agents knew that the written agreement did not conform to the intention of the parties and that they knew that he, Chastain, thought the written instrument did express the intention of the parties.

As a 'third affirmative and inconsistent defense' (emphasis added) it is alleged (after incorporating paragraphs one and two of the first) that 'Exhibit A' (the contract) attached to the cross-complaint, is a true copy of the written instrument signed by cross-defendant, except that the instrument signed by cross-defendant does not have the figures and date appearing immediately to the right of the signature of 'A. W. Chastain,' and except that the instrument signed by cross-defendant contains the following:

'This instrument covers 1949 crop only. Herb Miller.'

It is also alleged here that under the provisions of the written contract as signed, Belmont agreed to pay the sum of $1 per 3519 cubic inch field box for all fruit picked.

Belmont argues that for the sole and exclusive purpose of attempting to prove fraud, Chastain was permitted over objection to testify to conversations alleged to have taken place...