S.A. Gerrard Company, a Corp. v. Cannon, Civil 3335

• Citation: 28 P.2d 1016,43 Ariz. 14
• Decision Date: 22 January 1934
• Docket Number: Civil 3335
• Parties: S.A. GERRARD COMPANY, a Corporation, Appellant, v. R. B. CANNON, Appellee
• Court: Supreme Court of Arizona

28 P.2d 1016

43 Ariz. 14

S.A. GERRARD COMPANY, a Corporation, Appellant, v. R. B. CANNON, Appellee

Civil No. 3335

Supreme Court of Arizona

January 22, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded for a new trial.

Mr Herman Lewkowitz and Mr. J. B. Zaversack, for Appellant.

Mr. L J. Cox, for Appellee.

OPINION

ROSS, C. J.

This is an action by R. B. Cannon to collect from the S. A Gerrard Company for some hauling of cantaloupes and lettuce during the crop seasons of 1929, 1930, and 1931, alleged to have been done for the company at the instance and request of its employees.

Defendant denied the hauling was done for it or that it was indebted to plaintiff on account thereof. Defendant also alleged that the hauling services were rendered to Joe Takano, J. Kaneko, L Asano, K. Nakatsu, Y. Matsumoto, N. Tanita and H. Kuhara, who were Japanese growers for defendant under contract, the material part of which is as follows:

"Now, therefore, it is agreed by and between the parties hereto:

"1. That said party of the first part (The S. A. Gerrard Co.) does by these presents hire, employ and engage the services of said party of the second part to superintend, manage, care for, plant, cultivate and harvest crops upon said lands and also hire from the party of the second part all necessary horses, farm machinery, tools and implements for a period of 6 months . . .

"2. . . . that all the work in the planting and cultivating, harvesting, packing and delivery of said crops shall be done and performed by the said second party, or, if it shall become necessary for said second party to have additional labor, he shall at his own expense employ the same, and there shall be no obligation on the part of the first party to pay for any labor employed.

"3. The said party of the second part in consideration of said employment, does hereby promise and agree to work, labor and render services to the said party of the first part for said period of employment and does hereby promise and agree to duly and properly manage, care for, plant and cultivate said crops during said period of employment in a good and farmerlike manner, as directed and required by the said party of the first part, and to harvest and prepare all such crops for market, including the packing and delivery of the same in containers furnished by party of the first part at the nearest convenient point for distribution to market, as shall be designated by party of the first part, and do any and all other things in connection therewith, as directed and required by said party of the first part, and to furnish and hire to the party of the first part all necessary horses, farm machinery, tools and implements.

"4. . . . It is expressly understood and agreed between the parties hereto that this agreement is one of employment only, and that said second party shall have no interest of any kind or nature, in or to, and shall have no control over, the crops grown on said lands or any part thereof, and the said party of the second part is to be compensated for services only as in this agreement provided."

It is averred that plaintiff knew of the written contract and its terms.

The trial resulted in a verdict and judgment for the plaintiff for the full amount asked.

The reasons for defendant's appeal, as indicated by its assignments, are: (1) The court's refusal to grant its motion for a directed verdict at the close of plaintiff's case; (2) a like refusal at the close of the whole case; and (3) an erroneous instruction to the jury.

There is not much conflict in the evidence. Therefrom it appears that during 1929, 1930, and 1931, and for several years prior thereto, defendant was engaged in growing and marketing, on a large scale, cantaloupes, lettuce and other vegetable products on its own lands or lands rented by it, situate in the Salt River Valley, and with its Japanese growers used the above form of contract. The named growers had separate contracts with defendant, and they separately grew crops and hired the plaintiff to do the hauling of their cantaloupes and lettuce, at so much per crate, from packing sheds to shipping points. Plaintiff rendered all his bills for hauling to the grower that hired him. The credits on such bills were payments made by the grower. At no time while he was doing the hauling did he render a bill to defendant, or formally demand payment of defendant, although these growers were behind in their payments for hauling from the first season of 1929 to and including the spring season of 1931, or practically until he ceased to haul for them.

Bearing on plaintiff's knowledge of the grower's contract we give his answers to the following questions:

"Q. You know what a grower's contract is, don't you? A. Probably.

"Q. You have seen lots of them? A. I didn't care to read them . . . Not before I had the trouble."

Again he testified: "I thought the Japs were being paid the money to pay me and were using it for other purposes and I was being as lenient as possible."

Plaintiff, however, testified that he thought he was hauling for defendant; that one time he gave defendant's bookkeeper the names of the Japanese and the amount each owed him for hauling.

The manner of carrying out the written contract by the grower and the defendant was essentially in conformity with its terms. The grower furnished work animals, farm machinery, tools and implements, and all the labor necessary for the planting cultivating, harvesting, and packing, and personally employed plaintiff to deliver the crops to the shipping station; and the defendant furnished the land, irrigation water, seed, crates, a stated amount per acre ($15) for expenses, shipped and marketed the product, and, after deducting all expenses, including rent for land, costs of water, seed and commissions, from the gross amount received, paid the grower 80 per cent. of the net profits, if any....