WM. B. Hughes Produce Co. v. Pulley

• Decision Date: 08 February 1916
• Docket Number: 2775
• Citation: 155 P. 337,47 Utah 544
• Court: Utah Supreme Court
• Parties: WM. B. HUGHES PRODUCE CO. v. PULLEY

155 P. 337

47 Utah 544

WM. B. HUGHES PRODUCE CO. v. PULLEY

No. 2775

Supreme Court of Utah

February 8, 1916

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Action by William B. Hughes, doing business as William B. Hughes Produce Company, against George H. Pulley.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED with directions.

J. W N. Whitecotton, for appellant.

W. E Rydalch and Edw. McGurrin, for respondent.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This is an action for breach of contract. The action is based upon a certain contract, which was introduced in evidence by the plaintiff as his Exhibits A and B. Exhibit A reads:

"February 4, 1911.

"Received from Wm. B. Hughes Produce Company of Salt Lake City, Utah ten and no 100 dollars in part payment of six hundred bushels or more of first-class potatoes at $ 1.25 per hundred sacked, to be delivered f. o. b. cars at American Fork within 30 days from date. Balance of payment to be made on the delivery of said potatoes.

Geo. H. Pulley."

Exhibit B is as follows:

"For R. N. Z. potatoes. Price $ 1.25 per cwt., sacked f. o. b. American Fork. Advances $ 10.00. Sacks to be furnished by William B. Hughes."

The undisputed evidence is to the effect that plaintiff was doing business in Salt Lake City under the name of William B. Hughes Produce Company, and that he, under that name, entered into the foregoing agreement with the defendant, who was a farmer at American Fork, Utah County, Utah; that the plaintiff at no time furnished any sacks, nor offered to do so, in which to sack the potatoes; that on the 26th day of March, 1911, the defendant, not having heard anything from the plaintiff regarding said potatoes, sold the same for five cents less per bushel than the contract price, the price he sold them for being the market price for potatoes at American Fork at that time; that the defendant did not notify the plaintiff of his intention to sell the potatoes; that the plaintiff demanded the potatoes on April 14, 1911, at which time he was informed by the defendant that he had disposed of the potatoes. The plaintiff also testified that the market value of the potatoes "to me" at American Fork in February and March was $ 1.45 per hundredweight. Upon substantially the foregoing evidence the court found that the defendant had breached the contract, and that the plaintiff, in consequence thereof, was damaged in the sum of $ 54. Judgment was accordingly entered in favor of the plaintiff, and the defendant appeals.

The defendant insists that the findings are not supported by the evidence, and that the conclusions of law and judgment are contrary to law. It seems to us that the whole question hinges upon what meaning shall be given to the contract in question. Considering Exhibits A and B together for the purpose of ascertaining the intention of the parties, as we must do, what are the terms and conditions of the agreement?

In our opinion they are just these: The defendant sold to the plaintiff at least 600 bushels of first-class potatoes at $ 1.25 per hundredweight, to be delivered in sacks f. o. b. cars at American Fork within thirty days from February 4, 1911; that the plaintiff paid the defendant ten dollars as part payment of the purchase price, the remainder to be paid upon delivery of the potatoes, and the plaintiff further agreed that he would furnish the sacks in which to sack the potatoes. Now, it seems to us that while the defendant had obligated himself to deliver the potatoes as stipulated in the agreement, the plaintiff had bound himself to furnish the necessary sacks in which the potatoes were to be sacked before delivery. If it be held that plaintiff was not required to furnish the sacks, then something he agreed to do must be eliminated from the agreement. How can it reasonably be contended that the plaintiff has complied with the stipulations of the contract, unless it be shown that he had tendered the sacks to the defendant in which the potatoes were to be placed before delivery and shipment? Plaintiff's counsel, however, vigorously insist that the furnishing of the sacks by the plaintiff was not a condition precedent to his right to have the potatoes delivered, because his agreement to furnish sacks was not an essential or material part of the contract. That seems to have been the view taken by the trial court. Indeed, unless that view is taken, the court's conclusions cannot be sustained.

In support of their contention counsel cite and rely on a case from the Supreme Court of Illinois, namely, McKee v Retter, 10 Ill. (5 Gilman) 315, decided in 1848, in which a contract for the sale of wheat, very similar in terms to the one in question here, was passed on, and where it was held that the furnishing of the sacks by the plaintiff was not a condition precedent, and that the defendants were not excused for a failure to deliver the wheat because the plaintiff had not furnished the sacks in which it was to be sacked before delivery. It was held that the failure to furnish the sacks by the plaintiff was too "insignificant" to justify the defendants in refusing to deliver the wheat at the time and place agreed upon. Upon the other hand, counsel for the defendant cites and relies upon a case from the Supreme Court of Indiana ( Russell v. Witt et al., 38 Ind. 9), where the defendants in error agreed to furnish the sacks in which a certain quantity...