Shoemake v. F. H. Woodruff & Son, Inc.

California Court of Appeal

Shoemake v. F. H. Woodruff & Son, Inc.

227 Cal. App. 2d 587, 38 Cal. Rptr. 817, 1964 Cal. App. LEXIS 1215

CourtCalifornia Court of Appeal

DecidedJune 1, 1964

DocketCiv. No. 338

StatusPublished

Cited by2 cases

This text of 227 Cal. App. 2d 587 (Shoemake v. F. H. Woodruff & Son, Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shoemake v. F. H. Woodruff & Son, Inc., 227 Cal. App. 2d 587, 38 Cal. Rptr. 817, 1964 Cal. App. LEXIS 1215 (Cal. Ct. App. 1964).

Pincite

Opinion

CONLEY, P. J.

This is the second appeal in this litigation. (Hayman v. Shoemake, 203 Cal.App.2d 140 [21 Cal.Rptr. 519].) The plaintiffs, Louis Hayman and George Covert, who are not parties to the appeal, bought from the defendants and cross-complainants a field of onions and thereafter sued them for damages because of the breach of their express warranty that the onions were Asgrow Y-50’s, a specific variety which had previously produced excellent crops in the San Joaquin Valley. A cross-complaint was filed by the defendants, Shoemake and Gnesa, against F. H. Woodruff & Son, Inc., the corporation which had sold the identical seed to defendants and cross-complainants on an earlier but similar warranty.

The amount originally awarded to the plaintiffs in the superior court as against the defendants was the sum of $66,182.68, and the cross-complainants were given judgment against the seed company and its employee in the sum of $93,523.68. The defendants did not appeal from the judgment awarded to plaintiffs as against them, and it long since has become final. In the earlier opinion, this court held that it was improper for the.trial court to add routinely the damages awarded on the complaint to the damages awarded on the cross-complaint as the two warranties, while applying to the same seed, were in fact different transactions and that it did not follow under the pleadings and the rules of law that defendants should be additionally awarded whatever damages were given to the plaintiffs.

By stipulation all evidence received in the first trial was received in evidence in the current trial.

As stated in the former opinion: “The two main questions raised on the appeal from the judgment on the cross-complaint are whether cross-defendants are liable on a theory of warranty, and if so, whether the damages awarded are proper.”

[589]*589This court determined that an express warranty was in fact made by the cross-defendant company and that cross-complainants were entitled to recover damages, but the judgment would have to be reversed; the case was sent back for a new trial “on the question of damages only.” In the opinion, the court says: “The proper measure of damages is the difference between the reasonable market value of the crop as actually raised and sold and the reasonable market value of the crop which would have been produced and sold if the warranty had been complied with, necessarily deducting in each instance from the gross market value of the product the cost of planting, irrigation and care of the crop and the cost of harvest, transportation and sale. (Paul v. Williams, 64 Cal.App.2d 696, 703 [149 P.2d 284]; Newhall Land & Farming Co. v. Hogue-Kellogg Co., 56 Cal.App. 90, 95 [204 P. 562]; 43 Cal.Jur.2d, Sales, § 289, p. 411; 46 Am.Jur., Sales, § 750, pp. 877-879.) Obviously, net profit cannot be ascertained without deducting the cost of producing a crop....

“Complaint is made by appellants that the market for onions, as shown by the evidence, varied greatly from time to time, that the sale dates adopted by the court for the calculation of damages were uncertain, and that the figure assumed for market value of the theoretical portion of the potential crop was at an unduly high point on the scale. The mere fact that it is difficult to ascertain exact damages is no reason to eliminate them completely. (Noble v. Tweedy, 90 Cal.App.2d 738, 745 [203 P.2d 778]; Phalanx Air Freight, Inc. v. Nat. etc. Freight Corp., 104 Cal.App.2d 771, 776 [232 P.2d 510]; Smith v. Mendonsa, 108 Cal.App.2d 540, 543 [238 P.2d 1039]; 14 Cal.Jur.2d, Damages, §§ 65-66, pp. 690-692.) However, the wisdom of the old saw, ‘There’s many a slip ’twixt cup and lip’ is particularly applicable to farming operations. There are so many elements that may effect a complete reversal of expected profits, including weather, farming practices, irrigation timing, the nature of the harvest and transportation systems employed and the condition of the market, that care should be taken by a trial court not to be overoptimistic as to the reasonable market value of a theoretical crop. These are considerations to be given due weight upon retrial of the ease.”

Upon retrial, the court, of course, owed a duty to follow the directions contained in the opinion relative to the ascertainment of damages.

[590]*590The trial court correctly found that the actual crop of onions harvested and sold at Stockton was 42,634 50-pound bags of onions and that if the seed had been as warranted the harvest would have produced 82,784 bags; also that the beginning of marketing would have been two weeks earlier than it in fact was. The court also found, incorrectly as hereinafter noted in detail, that the average selling price per bag would have been $2.10 for the total theoretical crop.

Before examining in detail the method and the mathematical elements used by the trial court to reach the somewhat startling conclusion that the damages which should be awarded to the cross-complainants were $95,718.22 (that is to say more than $2,000 in excess of the former judgment on the cross-complaint), we must examine one of the points made by appellant, which was not sustained by the trial court. This contention was that by reason of certain evidence offered by the appellant the trial court should have found that the seed actually sold by the cross-defendant company to cross-complainants would have matured just as early as Asgrow Y-50 seed; this point was eliminated from consideration on the second trial for the reason that this issue was decided at the first trial and affirmed on the first appeal. This court expressly reversed the first judgment as to damages only and it is clear that the issues of warranty and breach of warranty Avere finally concluded; no such question could be urged on the retrial.

An important lapse on the part of the trial judge in estimating damages is that he used the opinion of a cost accountant as to what the probable cost of harvesting the theoretical crop of onions would have been rather than the figure Avhich constituted the exact amount which Mr. Shoe-make and his partners by express contract would have had to pay for the harvest. Shoemake and partners sold to plaintiffs the field of planted onions at $400 an acre with an additional agreement to pay to Hayman and Covert the sum of $1.00 per bag for harvesting the onions. This agreement Avas binding upon the parties and it was explicit as to what Shoemake and the Gnesas would have had to pay as harvesting costs; it is obviously erroneous to substitute for that definite and realistic figure of $1.00 per bag the sum of $0.72 testified to as theoretical cost by the accountant. In order to do justice it is essential that there be deducted from the theoretical proceeds of the theoretical crop an actually proven harvesting expense of $1.00 per bag. The difference in net proceeds would, there[591]*591fore, have been $23,179.52. This figure is arrived at by multiplying 82,784 bags by $0.28, the difference between the $1.00 contract price and the $0.72 theoretical cost of harvest. Any award of damages must obviously be reduced by this amount.

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