Opinion
Rehearing Denied Jan. 18, 1929
Hearing Granted by Supreme Court Feb. 18, 1929
Appeal from Superior Court, Sonoma County; H.L. Preston, Judge.
Action by Louis Engelberg against Sam Sebastiani. Judgment for plaintiff, and defendant appeals. Modified and affirmed. COUNSEL
W.F. Cowan and A.W. Hollingsworth, both of Santa Rosa, for appellant.
Barrett & McConnell, of Santa Rosa, and Samuel M. Samter, of San Francisco, for respondent.
OPINION
DOOLING, Justice pro tem.
This action was brought to recover a balance due under a contract for the sale of a crop of grapes by plaintiff and respondent, Engelberg, to defendant and appellant, Sebastiani. In two counts respondent sought to recover for two lots of grapes refused by appellant and sold for his account by respondent. In a third count respondent sought to recover for certain grapes delivered to and received by appellant. Appellant by answer alleged that the grapes in question were not of the quality required by the contract, and that respondent in picking them had mingled mouldy and rotten grapes with good grapes, thereby rendering all of them unfit and unsalable, and also on those grounds cross-complained for damages alleged to have been suffered thereby. The case was tried by jury, and verdict went for respondent for the full amount prayed.
The contract was construed by the court as constituting an executed sale, and the jury were so instructed. Appellant complains of this instruction and the theory on which the case was tried as a result of the court’s construction of the contract. So far as it is material in the determination of this question, the contract read as follows:
"The party of the first part hereby sells to the party of the second part, and the party of the second part hereby buys and purchases of the party of the first part all grapes now growing on Madrone Vineyard in Sonoma County, California, in seller’s unlidded lugs at seventy-six ($76.00) and no/100 Dollars per ton F.O.B. Platform, excluding therefrom any grapes that might show mildew or might be sunburned, and the second party agrees to accept, receive and pay for the grapes purchased hereunder when the said grapes, or any thereof, show eighteen (18%) per cent or a better percentage of sugar. ***
"The price of said grapes shall be seventy-six ($76.00) and no/100 Dollars per ton for all varieties, F.O.B. platform Madrone, California; it being understood, however, that the said grapes are not being sold for any specific purposes and the buyer shall take delivery of all grapes regardless of car shortage, railroad strike, embargo, rain, or any other act of any character whatsoever, whether the act of nature or within or without the control of either or both of the parties hereto, it being the intention of this contract to constitute an absolute sale of all of said grapes."
This contract was executed on August 29, 1923, at which time the grapes were well formed on the vines, but not yet ripe or ready for picking, the first delivery under the contract having been made on September 15, 1923.
Relying on the familiar rule announced in Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 P. 248, 9 Am.St.Rep. 199, that a contract, though it uses the terms of present sale, will be construed as a contract to sell rather than an executed sale where anything remains to be done to put the goods in deliverable condition, and particularly where the portion of the crop to be delivered is not yet identified, appellant insists that the contract here was an executory contract to sell and not an executed sale. The question becomes material because of appellant’s insistence that, if title did not pass until appropriation and delivery, then, under section 1768 of the Civil Code, there was an implied warranty that the grapes should be sound and merchantable under the provision of that section that "one who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable."
Whether this contract constituted a present sale is to be determined by ascertaining the true intention of the parties. Thus in the leading case of Blackwood v. Cutting Packing Co., supra, the court said: "It seems well settled that the question as to whether the title has passed is one as to the intention of the parties. And such intention is, as a matter of course, to be gathered from the language of the parties, considered in the light of all the circumstances of the case." It is only where the language used does not clearly show an intent to pass title that the courts resort to the presumption that where something remains to be done to place the goods in condition for delivery the contract is executory. In this case the parties, in addition to the usual language of purchase and sale (which is not controlling as to their intent), have expressly provided that it is "the intention of this contract to constitute an absolute sale of all of said grapes." The use of the words "absolute sale" indicates a deliberate intent, deliberately expressed, to bring about an executed sale rather than a contract to sell. This case seems to fall within the rule announced in Hamilton v. Klinke, 42 Cal.App. 426, 183 P. 675. In that case there was a contract for the sale of a crop of beans then growing on certain described land and containing a provision that this contract "constitutes an absolute sale." The court, after quoting the language hereinabove quoted from Blackwood v. Cutting Packing Co., supra, said:
"The court [i.e., in the Blackwood Case] found that there were certain enumerated things to be done connected with the contract which had a controlling force indicating that it was not intended to mean a sale.
"In the present case we cannot discover that Klinke was to do anything which he would not naturally or ordinarily be required to do in case of a sale." (Although, we may remark, he was to grow and harvest the beans and deliver them in sacks.) "Besides, to make his intention unmistakable the following was made part of the contract: ‘It is mutually understood that this contract, *** constitutes an absolute sale.’ "
Both the circumstances of the case before us (substitute crop of grapes for crop of beans) and the language used are so similar to the Klinke Case that we think that case is controlling here. It follows that the contract was one of executed sale.
However, even if the contract should not be so construed, we are satisfied that the parties have expressly contracted against any implied warranty of soundness or merchantability by providing that "the buyer shall take delivery of all grapes regardless of car shortage, railroad strike, embargo, rain or any other act of any character whatsoever, whether the act of nature or within or without the control of either or both of the parties." Language more sweeping or better calculated to place all risks upon the buyer could hardly have been used.
The court, on motion of respondent, struck out certain portions of the cross-complaint. These portions consisted of allegations that appellant notified respondent that he had a market for certain grapes in New York and for certain other grapes in San Francisco, and directed that the grapes be picked and packed in a certain manner for shipment to those points, and that his instructions were disregarded, whereby the grapes were rendered unfit for those markets to appellant’s damage. The trial court held that the only obligation upon respondent was to deliver grapes free from mildew and sunburn and with at least 18 per cent. sugar content, and to use ordinary care in the handling and harvesting, and the portions of the cross-complaint not stricken out fully tendered the issue as to whether respondent had failed to do these things to appellant’s damage. There was no error in the trial court’s action. The contract expressly provides for the quality of grapes to be delivered and the manner in which they are to be delivered. It further provides that "said grapes are not being sold for any specific purposes," and that "the terms herein contained embody each and every covenant and promise on behalf of the parties hereto." So long as respondent delivered grapes of the quality provided by the contract and used due care in harvesting them, he was doing all that was required of him under the contract.
The contract contained the further provision that: "In the event of a failure of the second party to accept and pay for any grapes, as hereinbefore provided, the party of the first part reserves the option to immediately dispose of any grapes covered by this contract whether on the vine or not paid for as herein provided at the best market price obtainable, and charge second party with any loss that might be occasioned by such disposal, and this agreement shall become null and void thereafter." From this provision appellant argues that after respondent disposed of the first lot of grapes refused by appellant the contract was terminated, and that any delivery to appellant thereafter was not made under the contract, but must be held to have been made for the reasonable market value and not for the contract price. The parties, however, continued to operate under the contract, and appellant thereafter accepted and paid for a large quantity of grapes at the contract price. This constituted a waiver of the provision for the termination of the contract. The provision further was for the benefit of the seller and could in any event be waived by him. Of a similar provision in a contract for the sale of land, i.e., that on default of the buyer "the agreement shall be void," our Supreme Court, after reviewing many cases, said in Wilcoxson v. Stitt, 65 Cal. 596, 4 P. 629, 52 Am.Rep. 310: "In the light of these cases, and we find none to the contrary, we feel constrained to hold that the meaning of the clause under discussion in the agreement in this case is that such agreement is void only at the election of the plaintiff, who can avoid it or enforce it at his option."
Appellant further complains of the action of the trial court in refusing a number of instructions based on the provisions of the California Fresh Fruit Act (Stats.1921, p. 1235) regulating the condition and manner in which fruit when delivered for shipment or offered for sale shall be packed. However, section 5 of that act, as amended in 1923 (Stats.1923, p. 663), exempts from the provisions of the act all fresh fruits intended for use in the manufacture of by-products. Section 6 of the act (Stats.1921, p. 1237) defines "by-products" as "any product manufactured from fresh fruits, fresh vegetables, or their juices." The transcript leaves in no doubt the fact that the grapes covered by this contract were wine or juice grapes and not table grapes.
The court did not err in rejecting evidence of the condition of other grape crops in the vicinity. The testimony was very full on both sides as to the condition of the crop covered by the contract. Nor was it error to exclude evidence of directions given by appellant to respondent as to the manner in which grapes should be picked. Both parties in that regard were bound by the provisions of the contract. Appellant’s offer of a letter from an eastern consignee was properly rejected as hearsay, and an objection was properly sustained to the question whether grapes picked in a damp condition would stand shipment to the east under the provision of the contract above noted that "said grapes are not being sold for any specific purposes."
We likewise find no error in the evidence received over appellant’s objection. In fact, in view of the length of the trial (the clerk’s transcript covers over 650 pages), it is remarkable that appellant has only pointed out five trivial instances in which he claims any error was committed in the admission of evidence.
Appellant complains of the giving and refusal to give a great number of instructions. For the most part, these complaints are based upon appellant’s erroneous theories of the case heretofore discussed. An examination of the instructions given and refused satisfies us that the jury were fully and fairly instructed concerning rights of both parties under their contract and the law applicable thereto.
One serious question remains to be considered. The court failed to give the jury any instruction concerning the allowance of interest. The jury brought in a verdict for plaintiff for $7,003.39, the full amount prayed. Thereupon the plaintiff moved the court for an order directing the clerk to add to the judgment upon the verdict interest at the rate of 7 per cent. per annum upon the various sums making up the total of the verdict from the date when each sum became due under the contract. This the court did and judgment was entered in the total sum, including such interest, of $8,122.75. Respondent was entitled to interest as a matter of law (Ryland v. Heney, 130 Cal. 426, 62 P. 616; Brazil v. Azevedo, 32 Cal.App. 364, 162 P. 1049), and the trial court should so have instructed the jury. Having failed to instruct them on this point, had the trial court any power to add the interest to the principal sum found due by the jury?
Section 664, Code of Civil Procedure, provides: "When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict." This language is mandatory. It has always been the rule in this state that the court cannot enter a judgment different from that returned by the jury except where it would have been proper to direct a verdict or as a condition to denying a motion for new trial. City and County of San Francisco v. Superior Court (Cal.App.) 271 P. 121; Slater v. Mayzie, 69 Cal.App. 87, 230 P. 453; Alpers v. Schammel, 75 Cal. 590, 594, 17 P. 708. In the last-cited case, judgment was entered by the clerk for $86 more than the verdict of the jury. Counsel for respondent argued that this represented 4 months’ interest on the principal sum. Said the Supreme Court (75 Cal. 594 [17 P. 709]): "This was in excess of the authority vested in the clerk by the statute. The judgment should have been entered for the amount of the verdict, with interest at the legal rate from the day on which it was returned by the jury. The respondents’ mode of accounting for the insertion of a sum greater than the verdict on the judgment is not sustained by the record, and if it was, it would not be in accordance with the mode pointed out by statute."
This is the only case in California which touches at all upon this precise question. It is, however, in keeping with section 664, Code of Civil Procedure, above pointed out, and section 626, Code of Civil Procedure, which provides: "When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant, when a counterclaim for the recovery of money is established, exceeding the amount of the plaintiff’s claim as established, the jury must also find the amount of recovery." Section 3287, Civil Code, provides for interest on money judgments. It is found in the chapter of the Civil Code entitled "Damages in General" and under the article headed "Interest as Damages."
In other jurisdictions the courts are sharply divided on the subject. In the following cases the courts have held that interest cannot be added to the verdict: Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610; Shoup v. Waits (Fla.) 107 So. 769; Gillett v. Clark, 6 Mont. 190, 9 P. 823; American Soda Fountain Co. v. Shell, 160 N.C. 529, 76 S.E. 631; Wichtrect v. Fasnacht, 17 La.Ann. 166. In the following cases the court has held that interest could be added: Hack v. Lashley, 197 Ky. 117, 245 S.W. 851; Ewing v. Foley, 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; St. Louis R. Co. v. Oliver, 17 Okl. 589, 87 P. 423, 10 Ann.Cas. 748; Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 8 L.R.A. 123; Marsh v. Kendall, 65 Kan. 48, 68 P. 1070; McAfee v. Dix, 101 A.D. 69, 91 N.Y.S. 464.
In the Missouri, Florida, and North Carolina cases holding that the court had no such power, and in the Kansas case holding that it had, it appeared that there were statutes similar to one or more of our Code sections above quoted.
While the question is not free from difficulty, we have reached the conclusion that under the provisions of our Code the judgment must conform strictly to the verdict of the jury and the court had no power to add interest to the judgment. So long as the right to trial by jury is guaranteed the parties should have the right to have every issue passed upon by the jury.
The judgment is accordingly modified by reducing the amount thereof from $8,122.75 to $7,003.39, and as so modified it is affirmed, the appellant to recover his costs on appeal.
We concur: KOFORD, P.J.; STURTEVANT, J.