Washington Cranberry Growers' Ass'n v. Moore

• Decision Date: 05 November 1921
• Docket Number: 16418.
• Citation: 117 Wash. 430,201 P. 773
• Court: Washington Supreme Court
• Parties: WASHINGTON CRANBERRY GROWERS' ASS'N v. MOORE.

201 P. 773

117 Wash. 430

WASHINGTON CRANBERRY GROWERS' ASS'N v. MOORE.

No. 16418.

Supreme Court of Washington

November 5, 1921

Department 2.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Action by the Washington Cranberry Growers' Association against A. B. Moore, to restrain the breach of a contract. From judgment granting a permanent injunction, defendant appeals. Affirmed.

Welsh &amp Welsh, of South Bend, for appellant.

John J Langenbach, of Ilwaco, for respondent.

MAIN J.

The purpose of this action was to restrain the breach of a contract. The trial resulted in a permanent injunction, from which the defendant appeals.

The Washington Cranberry Association is a corporation organized under the laws of this state, and is engaged in the business of marketing cranberries for those with whom it has contracts, and in some instances for independent growers. The appellant had entered into a contract with the corporation by which he agreed to deliver to it all the cranberries grown by him in Pacific county on land owned by him. The contract provides as follows:

'Witnesseth: That the grower, for and in consideration of one dollar paid him by the association, receipt of which is hereby acknowledged, and of the covenants and agreements herein contained, hereby nominates, appoints and agrees to employ the association as exclusive sales agents for the purpose of selling and marketing the entire crop of cranberries now growing or which shall be grown for shipment by the grower or for him, or in which he may have any interest as landlord or tenant, upon all those certain tracts of land situated in Pacific County, Washington, described as follows: Metes and bounds in section 27, township 16 north of range 11 west of Willamette Meridian, during the year 1916 and every year thereafter continually, provided, however that the grower may cancel this contract on the 15th day of January in any year by giving notice in writing to the association in writing at least 15 days prior to that date. Upon giving notice the grower shall, prior to said 15th day of January, pay any and all indebtedness due from him to the association and deliver his copy of the said contract to the manager of the association, and the same shall thereupon be canceled. 'The grower agrees at his own expense to cultivate, care for and harvest said crops. All fruit to be delivered by the grower at the warehouse of packing station of the association, at such place and at such time and in such manner as may be designated by the said association, which shall give notice to the grower for such delivery.

'In the event that grower shall fail to fulfill any or all of the requirements set forth in the foregoing paragraph, the association through its manager shall give to the grower written notice setting forth the default of the grower, and in event the defaults so specified shall not have been overcome or corrected within ten (10) days following delivery of such written notice to grower, it is mutually agreed that the association may consider this contract as canceled, and shall be relieved from further responsibility with regard to marketing the grower's fruit hereunder.

'The grower fully understands that the purpose, among others, of this agreement, is to maintain and increase to its greatest efficiency the association as well as the Contral Selling Agency, with which it is now or hereafter may be affiliated, and to accomplish this purpose it is necessary that he shall strictly and fully comply with and perform the stipulations and agreements on his part agreed herein to be performed, and therefore he hereby stipulates and agrees that he will not sell or otherwise dispose of his said fruit to any other firm, person, or corporation other than the aforesaid association; and it is hereby further mutually agreed that, inasmuch as it is impossible at this time to fix and estimate the actual damage which will be sustained by the association in the event that the grower shall fail to abide by his agreement to market his said fruit through the association, such damages are hereby estimated and agreed upon as one dollar per box for each box of cranberries grown or sold by the grower, which sum shall be allowed in any action brought by the second party to recover damages for the breach of this agreement by the grower should the association elect, as it may elect, to bring such action.

'In consideration of its appointment as exclusive sales agent of growers' fruit crop, as above set forth, and in further consideration of the agreements made by the grower with the association as hereinbefore set forth, the association agrees to receive, ship and sell all of said fruit to the best possible advantage. To promptly remit returns therefor, less its regular charge for aforesaid services and for any other deduction including money, due for advances for supplies furnished by the association to the grower, which indebtedness grower agrees may be treated by the association as a first lien on the proceeds from his fruit, and payment therefor to be deducted accordingly.

'In witness whereof the association has caused this contract to be signed and sealed in its name and behalf by its president and its secretary, and all other parties have hereto affixed their individual signatures. Washington Cranberry Growers' Association, C. K. Cooper, President. Attest: W. M. Rounds, Secretary. A. B. Moore.'

The Columbia River Cranberry Association is a corporation engaged in the same business as that of the Washington Cranberry Association, as is also the Oregon Cranberry Association, a corporation. After the contract above referred to was made the three corporations named entered into a contract whereby there was created what is referred to as the Pacific Cranberry Exchange, and appointed one L. S. Martin as the exclusive agent for the sale of all berries controlled by the three corporations. The cranberry exchange was composed of three members, a representative of each of the corporations. In the contract they are referred to as 'the associations.' It is provided that the cranberries shall be delivered f. o. b. cars at points designated by Martin and that he agress that----

'He will immediately upon acceptance by his representative of cranberries, upon surrender of bill of lading, advance to the Pacific Cranberry Exchange, the agent of said associations, the sum of $2.00 per box of the size heretofore indicated, said bill of lading hereinbefore mentioned shall be forwarded by said Pacific Cranberry Exchange, with draft attached to the Bank of California, of Portland, Or.

'The representative of the said L. S. Martin shall have access to the warehouses of the associations and to the warehouses or storerooms of the individual members of the associations, to determine the quantity, conditions and quality of berries available at any given time. A representative of the Pacific Cranberry Exchange may at any reasonable time have access to the books of the said L. S. Martin, at his offices in Portland, Or., for the purpose of checking sales and returns made by the said L. S. Martin.

'All returns shall be made to the Pacific Cranberry Exchange, the agent of said associations, on or before thirty days after the expiration of the month in which the berries are shipped to the said L. S. Martin.

'The associations agree that the said L. S. Martin shall receive a five per cent. commission on all gross sales of all berries sold by it to jobbers in the states of Oregon and Washington, and six and one-half per cent. on all other berries sold by the said L. S. Martin, and the said L. S. Martin hereby agrees to accept said commissions in full settlement for his services in the sale of said berries.

'The said L. S. Martin shall only be liable for actual negligence on his part, and no liability shall be attached to him by reason of damages caused to the associations or to individual members thereof, by strikes, embargo, shortage of equipment, or any other cause beyond the control of said L. S. Martin by use of reasonable diligence.

'It is understood and agreed that the fullest co-operation of the associations and of the Pacific Cranberry Exchange will be extended to the said L. S. Martin in the handling and marketing of said berries.

'All sales shall be made at the market price, or at a price to be mutually agreed upon by said L. S. Martin and the Pacific Cranberry Exchange.'- In Pacific county there were approximately 80 cranberry growers, and 60 of these had contracts with the respondent similar to the one set out. After the contract was entered into and during the year 1920 the appellant produced 1,300 boxes of cranberries and 500 of these were sold to parties other than the contract provided. As above stated, this action was brought to restrain the appellant from selling cranberries to parties other than the respondent. The appellant makes three principal contentions: First, that the contract is void at common law as against public policy; second, that it is contrary to article 12, section 22, of the Constitution of this state which is a section covering the

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