Keim v. D. B. Berelson & Co.

• Decision Date: 27 June 1951
• Docket Number: No. 14521,14521
• Citation: 233 P.2d 123,105 Cal.App.2d 154
• Court: California Court of Appeals Court of Appeals
• Parties: KEIM et al. v. D. B. BERELSON & CO. et al.

Page 123

233 P.2d 123

105 Cal.App.2d 154

KEIM et al. v. D. B. BERELSON & CO. et al.

No. 14521.

District Court of Appeal, First District, Division 1, California.

June 27, 1951.

Marvin Handler and Dana, Bledsoe & Smith, San Francisco, for appellants.

Alfred F. Breslauer and Appel, Dains & Liebermann, San Francisco, for respondents.

FRED B. WOOD, Justice.

Plaintiffs, copartners doing business as wholesale produce dealers in Arizona, have appealed from the judgment entered upon a verdict against them and in favor of defendants, copartners doing business as brokers in California, for breach of warranty of crushed, frozen pineapple purchased by plaintiffs.

Appellants do not question the sufficiency of the evidence to support the verdict. They claim the judgment should be reversed because of asserted errors in ruling on the evidence and in giving and refusing instructions to the jury.

The pineapple was grown in Mexico, purchased by Miller Brothers Foods Company, processed and frozen at its plant near Edinburg, Texas, and then shipped (one carload of 1,624 cases) to Tucson, Arizona, where appellants received and on July 25, 1945, stored it in their locker in an ice plant. Within a few days 73 cases were removed to another frozen food warehouse and then distributed by truck to various retail outlets in Arizona. August 16, 1945, appellants shipped the remaining 1,551 cases to a buyer at Seattle, Washington. Upon arrival at Seattle, this lot was found sour, decomposed, and fermented. Efforts to salvage and recondition it proved unsuccessful. The entire lot was eventually condemned by the government. Meanwhile, about one-third of the 73 cases proved sour and were returned to appellants.

Appellants claim that the pineapple was defective when delivered to them at Tucson; respondents, that the spoilage occurred after delivery, caused by improper storage by appellants at Tucson.

As to the contract of sale, appellants claim that they bought from respondents, as principal, through Smith-Whalen (an Arizona brokerage firm who negotiated the sale) as respondents' agent. Respondents claim that appellants bought from Smith-Whalen who was agent for Miller Brothers Foods Company and did not disclose the name of the principal; i. e., that respondents were general agents for Miller Brothers but had delegated Arizona business, including this transaction, to Smith-Whalen who as subagent represented the principal and for whose acts respondents were not responsible.

One of the assertedly erroneous instructions read as follows: 'The sworn statement by J. E. Keim that Keim Produce Company purchased the pineapple from Miller Brothers Foods Company of Edinburg, Texas, is evidence that Keim Produce Company, at the time it purchased the pineapple in question, knew that the pineapple was being purchased from Miller Brothers Foods Company and the D. B. Berelson and Company was only the sales agent or broker for Miller Brothers Foods Company.'

The statement mentioned was made by Keim in a third party claim filed by appellants October 4, 1945, in the government's condemnation proceeding then pending at Seattle. In it he said 'That prior to August 16, 1945, claimants purchased from Miller Brothers Foods Company, of Edinburg, Texas, a quantity of frozen foods, including the 1549 cases, more or less, each case containing twenty-four one-pound cups of articles labeled in part, 'Miller's Lone Star Frozen Crushed Pineapple, packed with pure pineapple juice and sugar, Net Weight when Packed one pound, Miller Bros. Foods Co., Edinburg, Texas,' lib[e]led in the above action.'

Appellants contend that at the time of their oral contract with Smith-Whalen (July 9, 1945) they believed that Berelson owned the pineapple and was the principal, that they then had no knowledge of Miller Brothers; that Keim's October statement was consistent with appellants' claim they acquired that knowledge later; that said statement might at most form the basis of an inference that at the time of contracting they knew Miller Brothers was the seller; and that the instruction gave the jury the impression that the statement was not merely evidence from which an inference might have been drawn but that it gave rise to a presumption, as a matter of law, that Keim had such knowledge at the time of the contract; hence, that the instruction had the effect of telling the jury what inference they might draw from certain facts in evidence. We do not so view it. By that instruction the court merely told the jury that the written statement made by Keim in October (potentially inconsistent with the position taken by appellants at the trial concerning their claimed lack of knowledge of Miller Brothers in July) was evidence for the consideration of the jury. The court also told the jury that 'Statements or admissions made do not prevent the party who made them from showing the circumstances under which they were made in order to explain the meaning and intent of the statement'; that the jury are the exclusive judges of all questions of fact, the weight of the evidence and the credibility of the witnesses, and must not select a single instruction or portion of an instruction but must consider all of the instructions as a pattern in determining any issue in the case. It is similar, though not identical, to the situation presented in Fawkes v. Reynolds, 190 Cal. 204, 211 P. 449, an action for damages for an alleged battery upon the person of the plaintiff. Concerning evidence of a plea of guilty entered by the defendant in a criminal action based upon the same occurrence, the trial court instructed the jury that '* * * 'Such plea of guilty is not to be taken by you as being conclusive that the defendant was guilty of the crime of assault and battery against the plaintiff. This plea of guilty should only be regarded by you as an admission on the part of the defendant, and it is proper that you should consider all that was said by the defendant at that time.'' 190 Cal. at page 213, 211 P. at page 453. The Supreme Court held that instruction proper, deeming it important that the jury be advised that the plea of guilty was not conclusive but that the jury was to determine the question, 'treating the plea of guilty as an admission of the defendant to be weighed in connection with his explanation thereof and all the evidence in the case.' 190 Cal. at page 213, 211 P. at page 453. The Fawkes case was decided in 1922. The 1934 amendment to section 19 of article VI of the state Constitution authorizes the trial court to 'make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case.' The amendment, obviously, enlarged the province of the court in this regard beyond that formerly permitted by section 19 of article VI, which until 1934, declared that 'Judges shall not charge juries with respect to matters of fact * * *'. See discussion in People v. Gosden, 6 Cal.2d 14, 28, 56 P.2d 211; People v. Ottey, 5 Cal.2d 714, 722-730, 56 P.2d 193. We do not find error in the giving of the questioned instruction.

Appellants claim the following instruction was erroneous: 'If you find from the evidence that the copartnership, D. B. Berelson and Company, was in fact acting as an agent and broker for the account of Miller Brothers Food Company of Edinburg, Texas, in the sale of the pineapple involved, and that at the time an enforceable and binding contract for the sale of the pineapple to Keim Produce Company was made, Keim Produce Company knew that D. B. Berelson and Company was acting as agent for Miller Brothers Food Company, your verdict in such case must be in favor of defendant D. B. Berelson and Company.' Appellants say the vice of this instruction inheres in the words 'at the time an enforceable and binding contract for the sale of the pineapple [was made]'; that those words refer to the time of performance (acceptance of delivery and payment of the purchase price) because it was an oral contract, not 'enforceable' until part performance; and that the time when that knowledge was significant was the time of the making of the oral contract. We do not deem that a reasonable interpretation of the instruction. There was no plea of the statute of frauds and no instruction concerning it. The questioned instruction was immediately followed by this one: 'A person who makes a contract with another as agent for a disclosed principal does not become a party to the contract. A disclosed principal is one whose identity at the time the contract was made was known to the third person with whom the agent deals.' The court had already informed the jury that 'A valid contract of sale may be made by word of mouth or may be inferred from the conduct of the parties. It need not be in writing,' and 'An agent who enters into a contract of sale in his own name without disclosing the identity of his principal renders himself personally liable, even though...