Ries v. Pacific Fruit & Produce Co.

• Citation: 294 P. 336,50 Idaho 140
• Decision Date: 13 December 1930
• Docket Number: 5493
• Court: Idaho Supreme Court
• Parties: PETER RIES, Respondent, v. PACIFIC FRUIT & PRODUCE COMPANY, a Corporation, Appellant

294 P. 336

50 Idaho 140

PETER RIES, Respondent, v. PACIFIC FRUIT & PRODUCE COMPANY, a Corporation, Appellant

No. 5493

Supreme Court of Idaho

December 13, 1930

CONTRACTS - CONSTRUCTION-WRITTEN AND PRINTED PROVISIONS-INCONSISTENCIES-RECONCILIATION, RULE OF.

1. In action for goods sold, evidence showed contract was option to purchase prunes and not consignment.

2. Contract should be construed most strongly against party preparing it or employing words concerning which doubt arises.

3. Where there is doubt regarding meaning of words of contract party will be held to meaning which he knew the other party supposed words to bear.

4. In action for goods sold, whether transaction was intended as outright sale of prunes, rather than consignment, held for jury.

5. General rule is where contract is partly written and partly printed, written parts control printed parts, unless parts which are antagonistic can be reconciled (C. S., sec. 5669).

6. Where there is only apparent antagonism between written and printed parts of contract and reconciliation is reasonable rule of reconciliation should govern in interpretation.

7. In action for goods sold and delivered, jury's finding that transaction constituted outright sale of prunes rather than consignment held supported by evidence.

APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.

Action to recover for goods sold and delivered. Judgment for plaintiff. Affirmed.

Judgment affirmed; costs to respondent.

Delana & Delana, for Appellant.

Where a contract is partly written and partly printed, the written part controls the printed part. (C. S., sec. 5661; Idaho Products Co. v. Bales, 36 Idaho 800, 214 P. 206; Salisbury v. Brooks, 81 W.Va. 233, 94 S.E. 117; 13 C. J. 536 sec. 498.)

If the contract is one of sale, there is no excuse for the allowance of or insertion in the contract of commissions. (First Nat. Bank v. Kilbourne (Schween), 127 Ill. 573, 11 Am. St. 174, 20 N.E. 681.)

Freehafer & McClure, for Respondent.

The books are full of cases in which the rules for the construing of contracts are announced. In Kinney v. Schlussel, 116 Ore. 376, 239 P. 818, the court says: "An instrument should be construed by taking it at the four corners and construction given, which, if possible, will give effect to all its parts and carry out obvious intention of parties, and which will make contract legal rather than render it void." (Delaney v. Nelson, 132 Wash. 472, 232 P. 292; Hessler v. Federal Casualty Co., 190 Ind. 68, 14 A. L. R. 1329, 129 N.E. 325.)

1 Page on Contracts, Supp. 1919 to 1929, sec. 2040, says: "A part of a contract will not be ignored as inconsistent with the general intent if by any reasonable method of interpretation effect can be given to such part of the contract as well as to the remaining parts thereof."

"Intention of parties to ambiguous contract must be determined from the language used when applied to the subject-matter of the contract and the circumstances and conditions surrounding the parties." (Udy v. Jensen, 63 Utah 94, 222 P. 597.)

BUDGE, J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

This action was brought by respondent against appellant upon three causes of action. The complaint alleges in the first cause of action that under a parol contract made in the fall of 1927 respondent sold and delivered to appellant five carloads of prunes, and that there is still due and owing to respondent under said contract a balance in the sum of $ 696.45. In the second cause of action respondent alleges that during the fall of 1927, under a written contract, he sold and delivered to appellant one and one-half carloads of prunes; that while the written contract stipulated that he was to deliver four carloads, appellant agreed to accept a lesser number, or one and one-half carloads, and that there is a balance due and unpaid for said prunes amounting to $ 516.58, together with interest. Under the third cause of action respondent sought to recover $ 10 for the delivery of certain baskets from Emmett to Boise. During the course of the trial the third cause of action was eliminated, appellant allowing a credit for such amount.

Appellant answered each and all of the allegations of respondent's complaint and affirmatively alleged that it received and accepted the prunes as brokers, on consignment, and had paid to respondent all that was due him after deducting commissions and necessary charges; and further affirmatively alleged that its contracts for the handling of the prunes were in writing. Appellant further alleged that respondent agreed to furnish it on consignment as brokers four carloads of prunes which he failed and neglected to do, and furnished but one and one-half carloads, to its damage by loss of commissions in the sum of $ 219.50 on the two and one-half cars of prunes not furnished. Appellant further alleged it had overpaid respondent $ 29.40 on the amount that was due, which amount it claimed it was entitled to recover.

The cause was tried to the court and jury, resulting in a verdict in favor of respondent in the sum of $ 946.86. This appeal is prosecuted from the judgment entered on the verdict.

The principal question for determination is whether the delivery of the prunes by respondent to appellant was upon consignment only, or was an absolute sale.

On July 26, 1927, appellant's agent and respondent entered into a written contract or agreement dated at Emmett, Idaho, wherein, among other things, it is recited:

"That Pacific Fruit & Produce Company, a corporation, (herewith designated as the buyer) and Peter Ries (herein after designated as the seller) hereby agree as follows:

"The buyer agrees to buy and the seller agrees to sell the following at a price hereinafter stated and put up in accordance with the following specifications. All fruit accepted according to rules of State Horticultural Inspectors, with permission to ship within or without the State of Idaho, 5 cars 1/2 Bu. Baskets Italian Prunes U.S. No. 1s Sale subject confirmation from New York @ 1.00 per basket less brokerage of 15 [cent] per basket with a deposit of 100.00 per car. Price F. O. B. cars with a state certificate of inspection with car sale subject draft.

"Said produce to be delivered as follows: Early as possible.

"Payment to be made as follows: One Dollar ($ 1.00) receipt of which is hereby acknowledged and the balance upon delivery of goods contracted, the same to be properly packed and graded, free from hail, rain or other damage, and in accordance with the above contract. . . . "

It is respondent's contention that the foregoing agreement was an option to purchase, and not a consignment, as contended by appellant. The evidence is conflicting. The record shows, however, that within two days after the above agreement was entered into, appellant's agent again visited respondent, telling him that he had made a better contract, and the brokerage would be but ten cents per basket; that a sale of the prunes had been made in New York. Respondent was paid $ 100 on each car of prunes to be thereafter delivered. At that time, the option being exercised, an oral contract was entered into under the terms of which respondent was to receive in cash, f. o. b. cars, $ 1 per basket for his prunes, less ten cents per basket. We are constrained to hold that the evidence supports respondent's contention that the contract of July 26, 1927, was an option to purchase, and not a consignment, and that there is sufficient evidence in the record to support respondent's contention that an oral contract of sale superseded the option.

On August 12, 1927, appellant, through its agent, and respondent entered into a second contract, partly printed and partly written. The contract provides, among other things, that appellant, designated as the buyer, and respondent, designated as the seller, agree as follows:

"The buyer agrees to buy and the seller agrees to sell...