Lerner v. Riverside Citrus Ass'n

• Decision Date: 27 January 1953
• Citation: 252 P.2d 744,115 Cal.App.2d 544
• Parties: LERNER et al. v. RIVERSIDE CITRUS ASS'N et al. TAVAGLIONE et ux. v. RIVERSIDE CITRUS ASS'N et al. Civ. 4474, 4475.
• Court: California Court of Appeals Court of Appeals

Page 744

252 P.2d 744

115 Cal.App.2d 544

LERNER et al. v. RIVERSIDE CITRUS ASS'N et al.

TAVAGLIONE et ux. v. RIVERSIDE CITRUS ASS'N et al.

Civ. 4474, 4475.

District Court of Appeal, Fourth District, California.

Jan. 27, 1953.

Hearing Denied March 26, 1953.

Wood, Crump, Rogers, Arndt & Evans, Guy Richards Crump, Los Angeles, Walter Clayson and Donald Stark, Corona, for appellants.

Thompson & Colegate, H. L. Thompson, Riverside, for respondents Lerner and Spiegel.

Best, Best & Krieger, Gerald Brown, Riverside, for respondents Tavaglione.

GRIFFIN, Justice.

These two actions are for alleged damages due plaintiffs from defendants for claimed fraud practiced in securing contracts for the handling and sale of plaintiffs' orange crops through the facilities of defendant Riverside Citrus Association. The complaints in both cases are similar in nature. By stipulation they were consolidated for trial and on appeal. The briefs of appellants raise the same points.

The Tavaglione complaint alleges generally that during March, 1948, defendants solicited and obtained from plaintiffs an agreement for the picking, packing, handling and marketing of the citrus fruit then growing on plaintiffs' property; that with intent to deceive and defraud plaintiffs and to induce them to contract with defendants, they falsely and fraudulently represented to plaintiffs that the net proceeds to the owners for navel oranges picked, packed, hauled and sold by defendant association for the then current season, had averaged approximately three and one-tenth cents per pound net to the grower; that in fact the net proceeds to the owners for such oranges had averaged only one and sixty-two hundredths cents.

The damage claimed was $3996.18, based on 214,489 pounds, which it is alleged returned to plaintiffs the sum of $2,652.98.

Defendants answered and denied generally the allegations of the complaint, admitted the net returns to growers for the season involved did not amount to 3.10 cents per pound or any sum in excess of 2.01 cents; that of the 214,489 pounds of navel oranges picked, defendant association packed and sold 128,988 pounds; that 14,680 pounds were sold in loose form; and that 64,101 pounds were sent to by-product plants, leaving 6,720 pounds of culls which were unfit for use; that defendants paid plaintiffs the net return of $3,121.56.

Defendants counterclaimed for a mistaken overpayment of $115.24, and cross-complained for liquidated damages in the amount of $4,050, for alleged violation by plaintiffs of the by-laws of the association while plaintiffs were members of it.

As to the Lerner complaint, it is alleged that on March 28, 1948, defendant association, through its agent, defendant Heinze, solicited plaintiffs to handle their crop of oranges; that plaintiffs advised defendant Heinze that plaintiffs had been offered $3.10 per cwt. for the fruit on the trees, and all expense of picking, packing, and selling was to be borne by the purchaser; that defendants fraudulently represented to plaintiffs that the net receipts for navel oranges picked, packed and hauled by defendant association up to March 28, 1948, for the then present season, had averaged $3.31 per packed box, when in truth it averaged only $1.62. Plaintiffs' complaint was amended to allege that the market value on March 28, was $3.10 per cwt. or $4,665.53, on the Esther Lerner property, and $7,713.63 on the remaining property. As to the Esther Lerner property $2,240.54 damages were claimed. As to the other property, it is alleged that 150,501 pounds or 1374 packed boxes were taken from that property, and that the net return of $1.86 per packed box was paid to plaintiffs. The prayer for damages was $3,659.45.

The answer denies the material allegations of the complaint and avers that defendant association picked 2842 field boxes weighing 150,501 pounds and packed and sold 1608 packed boxes and 122 packed boxes in loose form or the equivalent of 370 packed boxes of 22,206 pounds and picked 4,788 field boxes weighing 248,827 pounds from the remaining property equivalent to 2,575 packed boxes; that it sold in loose form the equivalent of 428 packed boxes and delivered for processing the equivalent of 442 packed boxes or 26,509 pounds; that from the Esther Lerner property there were 55 boxes of culls not saleable and the other property 129 such boxes; that defendant association paid plaintiff Esther Lerner $2,640.71 and the other plaintiffs $4,485.67. Judgment was in favor of Esther Lerner for $2,024.82 and the other plaintiffs, Sidney Lerner and Bernice Spiegel for $3,227.96. The court found against defendants on their counterclaim and cross-complaint

The main contention on appeal is that the evidence is insufficient to support the court's findings, which findings generally are in accord with the allegations of plaintiffs' complaints. The court specifically found that the statement made by the association's agent, that the net receipts to growers dealing through the association upon to March 29, 1948, averaged $3.31 per packed box, was false and untrue and made without regard to its truth or falsity because the association was not able to ascertain the net return for such crops until the close of that final year; that defendants picked and marketed from the grove belonging to Esther Lerner and other plaintiffs the amounts set forth in defendants' answer, and found that the net return from the Esther Lerner grove was $2640.71, and the others $4485.67; that the reasonable market value of oranges growing on the trees of Esther Lerner was $3.10 per cwt. or $4,665.53, and the sum of $3.10 per cwt. on the trees of the other plaintiffs, valued at $7,713.63. Judgment was for the difference.

As to the Tavagliones, there was a similar finding that the amount defendants picked, packed and marketed, sold in loose form and delivered to by-products, as well as culls, amounted to the total indicated in defendants' answer; that the net returns were $3,168.64, and that the market value of the fruit growing on the trees was $6,649.16. Damages were for the difference or $3,480.52.

It has been held that the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true, is declared by the code to amount to actual fraud. If, therefore, one asserts that a thing is true within his personal knowledge, or makes a statement as of his own knowledge, or makes such an absolute, unqualified and positive statement as implies knowledge on his part, when in fact he has no knowledge whether his assertion is true or false, and his statement proves to be false, he is as culpable as if he had willfully asserted that to be true which he knew to be false, and is equally guilty of fraud. Civ.Code, § 1710, subd. 2; Daley v. Quick, 99 Cal. 179, 33 P. 859; 12 Cal.Jur. p. 747, sec. 27.

Defendants, in their briefs, concede that the evidence shows that Heinze, the agent of defendant association, made the representations claimed (although Heinze denies making them) to M. H. Lerner, an experienced grower who was well versed in the method of growing and handling fruit through associations, and who was, at all times, acting as agent for his wife and children in handling the groves involved.

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