Western Fruit Growers v. Mettler

WESTERN FRUIT GROWERS, INC., Appellant, v. EMANUEL H. METTLER, Respondent.

COUNSEL

John Preston King and Simpson & Simpson for Appellant.

Osborn & Burum for Respondent.

OPINION

Marks, J.

Plaintiff instituted this action to recover $750, money had and received. Defendant answered, denying the allegations of the complaint. He cross-complained, seeking $1384.50 damages for breach of a written contract. The trial court denied judgment to each party and plaintiff has appealed.

[1] The findings of fact are supported by competent and material evidence. Therefore, if the findings support the judgment it must be affirmed.

On May 25, 1933, the parties entered into a written contract whereby defendant agreed to sell, and plaintiff to buy, fifteen carloads of onions of an established grade with an option on ten additional cars. Plaintiff paid defendant $750 on the contract. This sum was to be deducted from the price of the last cars shipped. The onions were inspected and accepted at Shafter, in Kern County, by the agent of the plaintiff. Defendant consigned them in the name of the Mettler Fruit Company to the Mettler Fruit Company and attached the bill of lading and a diversion order to a draft on plaintiff for the contract price of each car. The drafts for the first four cars shipped were paid. The agent refused to sign the drafts for the remaining cars, and the bills of lading and diversion orders on the next six cars were not delivered to plaintiff and it did not pay defendant for them. The carrier diverted these cars without the consent of the shipper. The eleventh car contained 385 sacks of defendant's onions and 215 sacks belonging to another grower. In some manner plaintiff obtained the bill of lading for this car and received the shipment without paying for the onions.

Defendant put in a claim to the carrier for the onions diverted by it, and received from it $2,031, this being the contract price of the six cars of onions, less the advance payment of $750.

The contract price which plaintiff promised to pay for the ten cars and 385 bags of defendant's onions was $4,788.75. On this amount defendant received the following payments: Cash advance, $750; paid for first four cars, $1800; paid by carrier, $2,031; total, $4,581, or $207.75 less than the contract [15 Cal. App. 2d 55] price to which defendant was entitled. He has not appealed and is not here complaining of the judgment. As plaintiff is not entitled to recover anything from defendant the judgment must be affirmed.

Judgment affirmed.

Barnard, P. J., and Jennings, J., concurred.