Nulaid Farmers Ass'n v. LaTorre

• Decision Date: 25 July 1967
• Citation: 60 Cal.Rptr. 821,252 Cal.App.2d 788
• Court: California Court of Appeals Court of Appeals
• Parties: NULAID FARMERS ASSOCIATION, Plaintiff and Respondent, v. Vito J. LaTORRE et al., Defendants; Central Coast Fryer Farms, Inc., Intervener and Appellant; Robert H. Henry, as Receiver, Defendant and Respondent. Civ. 23470.

Page 821

60 Cal.Rptr. 821

252 Cal.App.2d 788

NULAID FARMERS ASSOCIATION, Plaintiff and Respondent, v. Vito J. LaTORRE et al., Defendants; Central Coast Fryer Farms, Inc., Intervener and Appellant;

Robert H. Henry, as Receiver, Defendant and Respondent.

Civ. 23470.

Court of Appeal, First District, Division 2, California.

July 25, 1967.

Henderson, Vanoli & Dok, San Jose, Christy, Costello, Hoffman & Premo, Eugene M. Premo, Santa Clara, for appellant.

Kerner & Courter, San Francisco, Wyckoff, Parker, Boyle & Pope, Watsonville, for Nulaid Farmers Ass'n.

J. T. Harrington, Salinas, for Robert H. Henry, Receiver.

SHOEMAKER, Presiding Justice.

This is an appeal by Central Coast Fryer Farms, Inc. (hereafter referred to as 'Central') from a judgment of dismissal entered upon the sustaining without leave to amend of a general demurrer to Central's complaint in intervention.

On July 16, 1963, plaintiff Nulaid Farmers Association filed a complaint to foreclose certain chattel mortgages held by it against Vito LaTorre and others, and asking that a receiver be appointed to hold and operate various poultry farms owned by defendants pending the action.

On the same day, upon a proper showing, by an ex parte order Robert Henry was appointed receiver of the farms and was empowered, 'under the control and subject to the order of the Court, to take, care for, keep possession of, manage, operate and conduct the poultry farms * * * and to take charge and manage (said) property * * * and to collect rents, issues and profits and do all things necessary for the preservation and repair of such property and the reduction of the indebtedness described in said complaint * * * and with all other usual powers and duties of a Receiver.'

On August 12, 1963, this order was confirmed.

On September 24, 1965, Central filed a complaint in intervention which alleged that on May 27, 1965, Central and the receiver had entered into a written contract which provided for the growing of fryer chickens upon the Elkhorn Ranch, one of the properties subject of the receivership. This contract provided that Central was to place and maintain upon the receiver's land and facilities one fryer chick per square foot of brooding house, for a total of approximately three hundred sixty thousand to four hundred fifty thousand birds. One hundred twenty thousand birds per week were to be placed upon the land for the first three weeks, and one hundred fifty thousand per week for the following three weeks. The receiver was obligated, at his own cost, to raise the fryer chicks in a satisfactory manner and to furnish the necessary equipment, water, power, lights and labor to raise day-old chicks to a marketable age of nine weeks. When the chicks attained marketable age, Central was obligated to remove them from the premises and to pay the receiver a minimum of six cents per saleable bird. The receiver was prohibited, during the term of the contract, from raising poultry not owned by Central on the premises without Central's consent.

Although the contract was dated May 27, 1965, it was to 'commence' on November 25, 1965 and, unless canceled, was to continue for the completion of eight broods. Both parties were given the right to cancel the contract upon 30 days' notice, but it was provided that if the receiver elected to cancel at a time when Central had contracted for or had eggs set in incubators for the project, the receiver was required to accept and raise the chicks to saleable and marketable age.

In the first count, Central alleged that in reliance on the contract it had contracted with three other named parties for the purchase of eggs and chicks in order that it could perform its side of the contract with the receiver; that on September 17, 1965, after Central had already entered into the above-mentioned contracts to purchase eggs and chicks, it received notice of cancellation of the contract from the receiver; that Central was informed and believed that the receiver had orally agreed to lease the Elkhorn Ranch to a competitor of Central's for the same term provided for in the contract between Central and the receiver; that Central had never given its consent to such lease; that Central had thus far performed all of its obligations under the contract with the receiver and stood ready and willing to complete its performance; that damages would be inadequate to compensate Central for the detriment it would suffer if the receiver were allowed to breach the contract; that it was necessary and proper that the court issue a restraining order specifically enforcing the contract between Central and the receiver and prohibiting the receiver from breaching said contract, placing other poultry on the Elkhorn Ranch during the term of said contract or in any other way interfering with the performance of the contract during the term thereof or until the chicks for which Central had contracted had grown to a saleable and marketable age.

In the second count, Central incorporated the factual allegations of the first count and further alleged that by the attempted cancellation of September 17, 1965, the receiver had totally repudiated his contract with Central; that Central was unable to obtain like facilities; that by...