Opinion
12-21-1956
Larry FRICKER and A. V. Smith, partners under the firm name and style of Larry Fricker Company, Plaintiffs and Respondents, v. UDDO & TAORMINA COMPANY, a copartnership, Defendant and Appellant.* Civ. 5539.
Rimel & Johnston, Santa Ana, for appellant. Mize, Larsh, Mize & Hubbard, Santa Ana, for respondents.
Larry FRICKER and A. V. Smith, partners under the firm name and style of Larry Fricker Company, Plaintiffs and Respondents,
v.
UDDO & TAORMINA COMPANY, a copartnership, Defendant and Appellant.*
Dec. 21, 1956.
Hearing Granted Feb. 14, 1957.
Rimel & Johnston, Santa Ana, for appellant.
Mize, Larsh, Mize & Hubbard, Santa Ana, for respondents.
GRIFFIN, Justice.
Plaintiffs and resppondents Larry Fricker and A. V. Smith, doing business as Larry Fricker Company, manufacturers and distributors of fertilizer, brought this action against defendant and appellant Uddo & Taormina Company, a copartnership, canners of tomatoes (hereinafter referred to as defendant) and defendant George Kikuchi, grower, for $4,074.91, alleging that on November 1, 1952, defendants were indebted to plaintiff for money had and received, and defendants promised in writing to pay said money on request.
Defendant Kikuchi was never served and he was dismissed from the action on account of bankruptcy. The case went to trial upon a stipulation of facts which shows Kikuchi leased 160 acres of land to grow tomatoes and was under written contract to sell them to defendant canning company; that during the 1951 crop year, Kikuchi grew and sold to defendant the crop and plaintiff supplied the soil fumigant; that plaintiff was requested by defendant to supply on credit and to take a written crop order; that after first agreeing to this credit arrangement, plaintiff finally refused to supply on crop order and demanded instead a written promissory note signed by Kikuchi and guaranteed by defendant, which was done and the note was paid in full; that the rpoceeds from the sale of Kikuchi's 1951 crop were sufficient to cover all charges made by defendant against Kikuchi for advances, payments, etc. for his benefit, and after all such charges were deducted, there was a net balance of crop proceeds due Kikuchi; that prior to the commencement of the 1952 tomato crop season Kikuchi again contracted with defendant to grow and sell to it crop of canning tomatoes; that this contract authorized, but did not require, defendant to make advances, payments, and/or loans to, or for the use and benefit of Kikuchi, and to charge the same against his account; that in April, 1952, Kikuchi again requested plaintiff to supply soil fumigant in the amount prayed for in plaintiff's complaint; that plaintiff orally asked defendant if it would again guarantee the bill as in 1951, and defendant company said that it would not guarantee the bill, but would accept a crop order against the 1952 crop returns 'which would become due from defendant to Kikuchi'; that the form of crop order used in 1952 by defendant, which is the same as used in 1951, read as follows: 'Uddo-Taormina Cannery * * * You are hereby authorized to pay to the' Fertilizing Company 'for material supplied by them, from _____ to _____ from the money due or to become due to me from you, and charge the same to my account'. Then follows the grower's signature and the following: 'The above order is accepted, but is payable out of moneys due or to become due to: grower after first deducting all advances made to grower by us, and after paying any orders given by him and received by us prior to the date of receipt of' fertilizer company 'invoices'. Accepted by _____.
It was then stipulated that plaintiff had never done business before 1952 by means of a crop order upon defendant, and had no knowledge of others who had, and was not acquainted with the form of crop order used by defendant; that after defendant promised to accept a crop order, and prior to April 5, 1952, plaintiff supplied Kikuchi with soil fumigant, and about April 25, 1952, plaintiff made out a bill to Kikuchi for the same in the amount prayed for in the complaint, and sent said bill to defendant; that after the receipt of said bill defendant checked with and secured Kikuchi's approval thereof, and about May 2, 1952, defendant executed and delivered to plaintiff a written instrument dated May 2, 1952, as follows: 'Larry Fricker Co. 'Gentlemen: 'This will confirm that we have accepted a crop order instructing us to pay to you $4,074.91 from the return due to George Kikuchi from Tomatoes delivered by him to us during the 1952 season.' Signed by the defendant company.
It was then agreed that no written crop order was ever given by Kikuchi directly to plaintiff covering the bills sued for in the complaint; that on May 2, 1952, defendant had already charged against Kikuchi's 1952 tomato crop account the sum of $27,000 for monies theretofore advanced to and for Kikuchi, and that of said amount $18,000 had been advanced and paid out for the rent upon the tomato crop land; that after May 2 and up to December 31, 1953, when the Kikuchi account was closed, defendant from time to time made further advances and loans for his benefit and charged the same to his account; that the total amount so charged after May 2, 1952, was $53,668, and that the total amount charged, both before and after May 2, was $80,668; that the first tomatoes were harvested from Kikuchi's land in August, 1952, and commencing with August 30, Kikuchi's crop account was credited from time to time as tomatoes were harvested, with the amount of gross crop proceeds, price adjustments, and other miscellaneous credits; that the total amount so credited was $77,013; that a detailed statement of Kikuchi's tomato crop account for the 1952 season with defendant, commencing December 18, 1951, and ending December 31, 1953, showing all charges and credits was received into evidence and marked defendant's Exhibit A; that the 1952 tomato crop production and crop returns therefrom proved to be smaller than either Kikuchi or defendant had anticipated and when the Kikuchi account was closed on December 31, 1953, the total sums of money advanced and paid out to and for Kikuchi exceeded by $3,655.19 the total of all the credit to his account, and Kikuchi was still indebted to defendant in that amount upon the date he was adjudicated a bankrupt; that at all times after December 18, 1951, Kikuchi had no funds or credits out of which to pay the cost of land rent, plainting and harvesting of the 1952 tomato crop except such sums as would be advanced or loaned by defendant for such purposes; that at all times during the growing and harvesting Kikuchi devoted his entire time to said crops and worked personally in the field; that he used, in the crop production and hauling, farm equippment and trucks either owned by him or being purchased by him on conditional sales contracts; that had said equipment not been available for use it would have been necessary to rent equivalent equipment; that in April, 1952, at the time when plaintiff elected to supply Kikuchi upon crop order, he knew and believed that Kikuchi had no funds, assets or ability to pay for the soil fumigant except out of the crop proceeds which Kikuchi could expect to receive from the prospective tomato crop; that at such time plaintiff did ascertain the approximate amount of the charges which had theretofore been charged by defendant against Kikuchi's said prospective tomato crop; that those items of the charges shown on defendant's Exhibit A were in the main used by him to pay necessary crop production expenses, and such payments were made only in cases where the party furnishing the labor, materials, etc. demanded payment and would not extend credit; that on each occasion when Kikuchi requested 'advances' to be paid directly to himself, the defendant, before making said advances, inquired of Kikuchi the purpose for which the money was to be used, and they were advised that it was needed and was to be used to pay various items of crop production expense; that Kikuchi did use some of the money so advanced to him for his family and himself to live on, and that he had no other source of income or funds out of which to support himself and his family; that Kikuchi used some of the money so advanced to him to make installment payments which were due on farm equipment which he was purchasing under conditional sales contracts, but that he was using said machinery full time in the production of said crop; that the moneys so advanced were necessary to the production of the tomato crop; that there never was a time during the 1952 season (from December 18, 1951, when the first charge for advance rent was made, to December 31, 1953, when the account was closed with a debit balance of $3,655.19) when the credit balance of the Kikuchi account with defendant exceeded the debit balance; and that the plaintiff's bill remains wholly unpaid. Findings were entered accordingly. Judgment went against defendant for said amount.
A similar action was before this court for decision in Garner v. Uddo & Taormina Co., 137 Cal.App.2d 819, 290 P.2d 967, where plaintiff, a liquid fertilizer distributor, brought an action against this same defendant for fertilizer sold to Kikuchi, the grower, on a crop order wherein he authorized Uddo & Taormina Company to pay plaintiffs from the balance of money due him from after deducting all advances made. The trial court found against plaintiffs and this finding was sustained on appeal. The facts related therein are quite similar to those in the instant case except there was another fertilizer company involved, and in the instant action there never was produced a signed crop order, as was done in the cited case. We are unable to perceive any material distinction which would attach any personal liability upon defendant for fertilizer furnished to Kikuchi. It is plaintiff's claim that by the transaction defendant company unconditionally accepted an assignment by the grower in the sum of $4,074.91, to be paid from the returns due grower for tomatoes delivered by him to defendant during the 1952 season; that the claimed assignment to plaintiff by the grower had precedence over any and all advances made to or on behalf of the grower subsequent to May 2, 1952, and that defendant is estopped to assert or maintain otherwise, citing such authority as Baumgarten v. California Pacific Title & Trust Co., 127 Cal.App. 649, 657, 16 P.2d 332; A. Farnell Blair Co. v. Hollywood State Bank, 102 Cal.App.2d 418, 227 P.2d 529; and Klein v. Farmer, 85 Cal.App.2d 545, 552, 194 P.2d 106.
It affirmatively appears from the stipulation that defendant's only obligation and duty to plaintiff was to 'accept a crop order against the 1952 crop returns which would become due from defendant to Kikuchi'. Plaintiff, upon whom the burden rested, never furnished defendant with such a crop order and it would be unreasonable to believe that defendant intended to accept a crop order couched in other language than that required of it and ordinarily used by it in such cases. At least there was no meeting of the minds of the parties as to its terms and plaintiff may not now argue, on appeal, that a more stringent liability was imposed on defendant than the crop order form indicated. If the general form used was in fact signed by plaintiff and Kikuchi, as defendant may well believe, then no recovery could be had under the case of Garner v. Uddo & Taormina Co., supra. If a different obligation arose, plaintiff failed to establish that fact. Plaintiff relies on the letter of May 2, 1952, as establishing an unconditional acceptance of an assignment by the grower. This letter specifically recited that plaintiffs were to be paid 'from the return due to George Kikuchi'. Plaintiff argues that the return referred to does not mean 'net return' but any return from the sale of the tomatoes. This sentence cannot reasonably be so construed under the circumstances. Under the stipulation defendant was authorized, but not obligated, to advance costs and deduct the same from the crop sales proceeds. It therefore clearly appears that defendant was authorized to make advances necessary to the production of the crop, deduct those sums prom the gross returns, and pay the balance to the grower. There never was a time after the opening of the account and the payment of the $18,000 property rental, that the returns exceeded the authorized deductions. Accordingly, there never was a time when any return was 'due' to George Kikuchi, from which plaintiff's claim could be paid. The letter itself specifies and limits the fund from which it was to be paid and such fund never came into existence. This coincides with the stipulation of facts. There is no indication or finding of fraud in reference to the priority of payment of advances and charges against the fund. It further appears that defendant refused to guarantee payment of this account by endorsing a note of the grower as in the past, and plaintiff relied upon the crop agreement arrangement. If plaintiff's claim were correct, that the letter of May 2, 1952, constituted an unconditional assignment, then defendant would be, in effect, guaranteeing payment of plaintiff's claim. This is entirely contrary to the intention of the parties as reflected in the stipulation of facts. We must therefore conclude that no personal liability against defendant attached. Lindley v. Fay, 119 Cal. 239, 243, 51 P. 333; Vatcher v. Grier, 50 Cal.App. 39, 41, 195 p. 75; Parker v. Herndon, 19 Cal.App. 451, 455, 126 P. 183; Sawyer v. Colgan, 102 Cal. 283, 292, 36 P. 580, 834; Tatsuno v. Pedersen, 21 Cal.App. 585, 132 P. 608. In fact, defendant was compelled to assume an indebtedness of $3,655.91 by reason of the failure of the crop to produce the amount anticipated by all of the parties and from which plaintiff apparently intended to rely for payment of the obligation.
As to the claimed estoppel, the facts indicated do not show that the party claiming its protection was intentionally or deliberately led into a course of conduct to his detriment by the party against whom he seeks to apply to doctrine. This is an essential element. The defense of estoppel often means that the party against whom it is invoked is deprived of the right to prove the truth as to a matter involving a substantial right and may thereby be divested of a substantive right of property; and since, as a general proposition, the great end of judicial inquiry is to ascertain the truth, the law does not favor estoppel. The doctrine is strictly applied, therefore, and will not be enforced unless substantiated in every particular. Lake v. O'Brien, 54 Cal.App. 543, 202 P. 158; City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475; 18 Cal.Jur.2d 406, secs. 4 and 5.
Judgment reversed.
BARNARD, P. J., and MUSSELL, J., concur. --------------- * Opinion vacated 312 P.2d 1085.