Mapes v. Santa Cruz Fruit Packing Corp.

• Decision Date: 03 October 1946
• Docket Number: 29996.
• Citation: 173 P.2d 182,26 Wn.2d 145
• Parties: MAPES v. SANTA CRUZ FRUIT PACKING CORPORATION.
• Court: Washington Supreme Court

173 P.2d 182

26 Wn.2d 145

MAPES v. SANTA CRUZ FRUIT PACKING CORPORATION.

No. 29996.

Supreme Court of Washington.

October 3, 1946

Department 1.

Action by Oscar Mapes against the Santa Cruz Fruit Packing Corporation to recover a claimed balance due for strawberries. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Skagit County; W. L. Brickey, judge.

Welts &amp Welts, of Mount Vernon, for appellant.

Eggerman Rosling & Williams and Joseph J. Lanza, all of Seattle, for respondent.

SCHWELLENBACH Justice.

This action was instituted to recover a claimed balance due for strawberries delivered by plaintiff and his son, James Mapes (who assigned his cause of action to plaintiff), to the defendant.

The plaintiff alleged that, during the season of 1943, he and his son delivered to defendant 246,312 pounds of strawberries, of the reasonable value of $36,946.80, for which they were paid $29,557.44, leaving a balance of $7,389.36 due and unpaid. The defendant admitted the delivery of the strawberries as alleged and the payments, but denied that there was any balance due. The defendant alleged affirmatively the existence of written contracts with the plaintiff and his son, which were set out in full. In an amended reply, the plaintiff alleged that, at the time the written instruments were executed, it was agreed between the parties that they should not come into force and effect unless the office of price administration passed a resolution preventing payment of a price of more than 12 cents a pound for the year 1943, and that no such rule or regulation came into being.

The cause was tried to a jury and resulted in a verdict in favor of the defendant. The plaintiff moved for judgment notwithstanding the verdict and, in the alternative, for a new trial, both of which motions were denied. From the judgment entered on the verdict, the plaintiff appeals.

The appellant claims error in the denial of his motion for a new trial, in entering judgment of dismissal, in the giving of a certain instruction, and in the admission of certain evidence.

Oscar Mapes and James Mapes live in the Skagit valley, and have been growing strawberries for some time. In 1943, they had about 40 acres under cultivation. Representatives of the respondent company had contacted them in the latter part of 1942 in regard to obtaining their entire output in 1943. On February 3, 1943, Marvin Knoblauch, manager of the Kent plant for respondent company, and Earl Anderson, field representative, met the appellant and his son at the appellant's home. After a discussion, identical contracts were signed by the father and the son. As to price, the contracts recited:

'Price to be for the 1943 Season 12¢ per lb.'

The form contracts had been prepared Before and, in their presence, Mr. Anderson crossed out the words as indicated above and wrote in longhand the words 'for the 1943 Season 12¢ per lb.'

The contracts also provided:

'This contract is intended and understood by both parties to pass title to said Berries and to constitute an absolute sale, but until delivery has been completed Seller agrees to and does assume all risk of loss, depreciation or damage to undlivered Berries. * * *

'No failure or omission on the part of the Buyer to insist upon or enforce any of the terms, agreements or conditions of this contract for one or more breaches on the part of the Seller, shall be deemed a waiver on the part of the Buyer, unless the same shall have been made in writing. No representative or agent of the Buyer shall have any authority to waive, change or add to any of the terms or conditions specified herein except by a writing duly executed.'

As to the question of price, Oscar Mapes testified: 'Well, they brought a contract and wanted us to sign the contract. There has been no price talked about Before , but in that contract it was twelve cents. We asked them what the twelve cents was for. They said, 'If the O. P. A. limits us to twelve cents that is what we will pay. If not, this contract will not go into effect and we will pay whatever other companies pay.''

James Mapes testified: 'They brought out a contract, and in this contract that I read over I noticed there was twelve cents a pound written in, so I asked Anderson what the twelve cents meant. He says, 'It only means one thing, if the O. P. A. limits us to twelve cents a pound to what we can pay the grower, that is what you will be paid. If they don't limit us to twelve cents a pound to the grower this contract won't come into effect and we will pay you as much as any other company.' I said, 'That sounds good to me.' And so I signed the contract.'

Earl Anderson testified:

'A. I asked Mapes--James and Oscar Mapes, whether they had decided whether they would let Santa Cruz have their total crop of berries for the year 1943, and they said yes, they had. They brought up the fact since limitations might be put on prices and there hadn't been anything out as to what the berry price was, I told them that it was still in agreement that they would have the same as any other company paid if they would give us their total amount of berries. They said that was the only question they wanted answered, and if that was what the situation was they would give us their total berries.

'Q. Then what happened, did you write some kind of an instrument? A. I wrote a contract and I put in twelve cents and handed it to them to sign, and Before signing they asked about that twelve cents. I had been notified by my company that they had been notified that that was the price that the grower would get, by the Government, and I thought that should be put in the contract for them, but they immediately raised the question, how about if any othr company pays more? I immediately told them that if the Government allowed, or anybody allowed any other company to pay more for those berries, we would do exactly the same thing, but under the present situation that twelve cents was what we thought at that time, or I had been notified was the price to put in that contract. So they stated that with the agreement that if any other company would pay more, therefore if the Santa Cruz would be allowed to pay more they would get it, and they signed the contract. * * *

'Q. What was then said by you when they asked about this written contract going into effect at twelve cents? A. I told them when they questioned the twelve cents, that if any other packer paid above the twelve cents and that Santa Cruz Packing Company would be allowed to do the same and they would get it, and that twelve cents in there would be absolutely--would not mean anything, and that they would get that additional money for their berries, and the agreement would not be in effect.

'Q. And you say it was with that understanding they signed the agreement? A. That is true.'

Shortly after this, Mr. Anderson was transferred to Bellingham by the respondent, and he left its employ November 1, 1944. Under cross-examination, he testified that he drew the lines through the contracts as indicated above Before the Mapes signed them, and that they noticed him doing it.

On the other hand, Mr. Knoblauch testified as follows regarding the price:

'A. Mr. Anderson and myself drove up to the Mapes residence and we made a call which undoubtedly is known as regarding the purchase of strawberries, and a general conversation for a few moments, maybe a little longer, Before we entered into talking of strawberries. Mr. Anderson, I believe, was handling the contract, and the question arose regarding the price, and it was explained to the Mapes in their home what the happenings had been from our last instructions were--in other words, as to the price we were permitted to pay as to the support price.

'Q. What did you tell them? A. I told them that we were permitted to pay as to the support price, our permission would be twelve cents.

'Q. Did you give them any other option? A. They knew the contract practically as well as we do. They have had the other option in past years.

'Q. What was that option? A. Either accept the actual price on the contract, or be paid the average price that was paid in the Pacific Northwest.

'Q. If they would have accepted that latter option of the average price, how would they be paid during the season? A. They would be paid their advance during the season, and the average would be taken of other packers, and they would receive returns on that basis.

'Q. How would the advance be computed? A. By what is written on the contract.

'Q. Would you have that specifically recited that they were to receive any advance? A. Beg pardon?

Q. If they signed an average price clause contract, would the contract have the amount that they were to be advanced during the season? A. Yes.

'Q. Was that explained to the Mapes, that they could have their option of either signing the average price, or taking a flat price of twelve cents--was that discussed with them? A. Yes, it was. It was discussed with them that they could have the average price that they had the year Before , or they could take the twelve cent support price that we were permitted to pay.

Q. What did they say with reference to that? A. They decided at that time that they would not take the average price, that they would take the twelve cent support price; and, to my recollection, if there was an increase in the support price allowed to the packer they would benefit by the same.'

The appellant and his son had entered into written contracts with the respondent in 1941 and 1942. The 1941 contract provided:

'Price to be (.05 cents per pound) the Season 1941 for like quality and grade.'

The 1942 contract provided: 'Price to be (Six cents per pound) advance the average price...