Simons v. Stokely Foods, Inc.
| Decision Date | 21 March 1950 |
| Docket Number | 30984. |
| Citation | 216 P.2d 215,35 Wn.2d 920 |
| Parties | SIMONS v. STOKELY FOODS, Inc. |
| Court | Washington Supreme Court |
Department 1
Action by G. J. Simons against Stokely Foods, Inc., for breach of a written contract to purchase a crop of peas on ground that defendant failed to furnish the equipment for the harvesting of the crop wherein defendant filed a cross-complaint. Judgment for plaintiff in the Superior Court, Yakima County Dolph Barnett, J., and the defendant appealed. The Supreme Court, Beals, J., held that plaintiff was properly allowed to produce evidence showing a local custom that under the contract involved the defendant was obligated to furnish to the farmer certain machines for harvesting the crop.
Modified and affirmed.
Halverson & Applegate, Yakima, for appellant.
Tonkoff & Holst, Yakima, for respondent.
Plaintiff G. J. Simons, is a farmer owning land near Mabton, Yakima county. The defendant, Stokely Foods, Inc., is a corporation organized pursuant to the laws of the state of Delaware, and for some years has been qualified to transact business within the state of Washington.
In his complaint, plaintiff alleged that, February 25, 1948, the parties to this action executed a written contract whereby the defendant agreed to purchase from plaintiff a crop of peas, to be planted by plaintiff on twenty-three acres of his farm; that the contract was prepared by the defendant; that the portion thereof pertaining to the harvesting of the peas was ambiguous; and that, at the time of the execution of the contract, it was orally agreed between the parties, which oral agreement was again made June 15, 1948, that the defendant would furnish certain harvesting equipment, consisting of machines known as a viner, a swather, and a loader, to be used in harvesting the crop.
Plaintiff also alleged that it was the custom of the neighborhood that the purchaser of peas from growers would furnish the growers with such equipment at the time of harvest; that the peas which plaintiff agreed, by the contract, to grow and sell to the defendant were ready for harvest on or about June 15, 1948, and that defendant's representative at Mabton was notified of this fact, but that the defendant failed and refused to furnish any machines or equipment for the harvesting of the crop, and refused to accept delivery of approximately forty-six tons of peas grown by plaintiff pursuant to the contract, with the result that the crop was lost, to plaintiff's damage in the sum of $3,450.
Plaintiff then alleged that he sustained additional damage in the sum of $402.50 by reason of the acts of defendant which resulted in making it impossible for plaintiff to produce fifty-seven and one-half tons of ensilage, which would have been produced after the harvest of the peas, and that he suffered further damage in the sum of $2300 by reason of defendant's acts, as, if the peas had been harvested, plaintiff could have planted corn for ensilage and produced a crop which would have been worth the sum last mentioned.
Plaintiff prayed for judgment in the sum of $6,152.50 and for costs.
By its answer, the defendant admitted the execution of the contract, but denied the existence of any custom or any ancillary oral agreements in connection therewith, and denied any liability to plaintiff. The defendant also denied that the contract was in any particular ambiguous.
By way of a cross-complaint, defendant alleged its corporate existence, and the execution of the contract (wherein plaintiff was referred to as seller and defendant as buyer) which contained, inter alia, the following: 'The seller agrees to plant, cultivate, harvest and deliver' the peas to the buyer, and provided
The contract further provided that the crop 'shall be harvested so as to be free from dirt, clods or weeds and to be placed on wagons or trucks as directed and promptly hauled to viner stations.'
The defendant further pleaded that it had furnished the seed, delivered fertilizer for use on the crop, and had 'dusted' the crop when necessary; that the value of the items furnished was $812.34; and that the plaintiff had failed to properly irrigate and cultivate the crop, had refused to harvest the crop and deliver the peas to defendant, and had failed to perform the contract.
Defendant prayed for dismissal of the action, and that it have judgment against plaintiff for $812.34.
By his reply, plaintiff denied the affirmative allegations of the answer and cross-complaint.
The cause was tried to a jury, which returned a verdict in plaintiff's favor in the sum of $2,554.42 (by its answers to special interrogatories, the jury stated that it found in defendant's favor upon the third item of alleged damage), and a verdict in favor of the defendant, on its cross-complaint, in the sum of $812.34.
Defendant's motion for judgment in its favor notwithstanding the verdicts or, in the alternative, for a new trial having been denied, judgment was entered upon the verdicts, resulting in a net judgment in favor of plaintiff and against the defendant in the sum of $1,742.08, together with costs, from which judgment the defendant has appealed.
Appellant assigns error upon the refusal of the trial court to sustain appellant's objections to the admission of evidence offered by respondent concerning customs and usages prevalent in the district in which the farm was situated; upon the giving of certain instructions to the jury, to which appellant excepted; and upon the refusal of the trial court to give other instructions which appellant requested. Appellant also assigns error upon the admission of certain evidence, over appellant's objection; upon the entry of judgment in respondent's favor; upon the refusal of the trial court to grant appellant's motion for judgment in its favor notwithstanding the verdicts or, in the alternative, for a new trial, and, finally, upon the entry of the judgment from which appellant has appealed.
From the evidence, it appears that respondent owns a tract of land near Mabton, where he engages in diversified farming. Appellant corporation is engaged in the business of freezing and canning peas for the market, and maintains a branch plant at Zillah for that purpose.
Respondent had never grown peas for freezing until 1948, when he discussed the matter with an agent of appellant, who agreed to furnish the seed. Respondent planned to grow peas upon a portion of his farm for the purpose of harvesting a double crop, the first crop for the freezing market and the second for ensilage for his cattle.
N. B. Strew, a field man in the employ of appellant, visited respondent's farm February 25, 1948, and, on that occasion, the written contract between the parties was executed. Mr. Strew had been in appellant's employ for about eight years, part of his duties consisting of supervising the growing and harvesting of crops which the farmers had agreed to sell to appellant.
Respondent planted the peas, according to instructions from appellant, during a period of several weeks, in order that the crop would not all mature at once, and was furnished with seed and a drill for the planting by appellant corporation, which also provided fertilizer for the crop and attended to the necessary 'dusting,' appropriate charges being entered against respondent. This was the customary procedure followed by appellant in carrying out its contracts for crops of peas with more than twenty-five farmers in the Yakima valley.
When, in respondent's opinion, the crop was ready for harvesting, he personally notified Strew, the evidence being somewhat in dispute as to what was said during this conversation. Respondent testified that Strew told him that appellant would send to respondent's farm a swather (used to cut the pea vines) and a loader (used to pick up and load the cut vines for transportation to the viner, a machine which removes the pods from the vines and shells the peas); while Strew testified that he informed respondent that the latter could use a swather and loader which, at that time, were in place on a nearby farm.
The two machines referred to are especially adapted to the harvesting of peas, making the harvesting of that crop easier and more expeditious. Several of these machines belonging to appellant were in the vicinity at the time, and, while the use of machines in harvesting a crop of peas is not essential, the work may be accomplished better and much more speedily with their aid.
Apparently, the crop matured approximately June 20th to 24th, and, no machines having been made available to respondent, as he testified, none were used. Respondent's crop was harvested several weeks later, with the aid of an ordinary mower which respondent purchased. At the time of this harvest, the peas were no longer fit for freezing, the period during which they may be frozen being not over forty-eight hours after the crop reaches a certain stage of maturity.
Late in June, respondent had called upon the manager of appellant...
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