Stender v. Twin City Foods, Inc.

490 P.2d 1311, 5 Wash. App. 809, 1971 Wash. App. LEXIS 1124
CourtCourt of Appeals of Washington
DecidedNovember 22, 1971
DocketNo. 534-1
StatusPublished
Cited by3 cases

This text of 490 P.2d 1311 (Stender v. Twin City Foods, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stender v. Twin City Foods, Inc., 490 P.2d 1311, 5 Wash. App. 809, 1971 Wash. App. LEXIS 1124 (Wash. Ct. App. 1971).

Opinions

Pearson, J.

This is an action for breach of contract in which the plaintiff-appellant, Richard T. Stender, a pea grower, was denied recovery by the trial court against defendant, Twin City Foods, Inc., a food processor.

The contract in question for 1968 required plaintiff to plant, fertilize, and cultivate 120 acres of “Perfection” peas, the seed of which was supplied by defendant. Twin City Foods, Inc. was required to harvest and vine the peas at proper maturity and pay a stipulated price, depending upon the quality of tenderness of the peas.

The planting under the contract was made in two stages, in late April and in early May, so that the entire acreage would not mature at once. It was undisputed that the first planting of 55 acres came to maturity and was properly harvested by defendant on July 23, 1968.

However, plaintiff’s claim centers around 63 acres of the remaining 65-acre1 second planting which defendant admittedly did not harvest, although the planting was ready for harvest between July 27 and August 2. Defendant’s excuse for nonperformance was based upon part 5, section 1 of the contract, which provided:

In the event of circumstances resulting from adverse weather conditions, mechanical failures or other means, that may delay harvest of the green pea crop beyond the optimum maturity for processing, Twin City has the option to divert that portion of Grower’s acreage for seed or feed purposes as the quality of the salvage may dictate.

(Italics ours.)

This clause constitutes an express condition subsequent, limiting defendant’s duty to perform in the event the condition happened. See Fleming v. August, 48 Wn.2d 131, 291 P.2d 639 (1955). Consequently, defendant had the burden of proof on the issue. Plaintiff contends this burden was not met.

Defendant introduced testimony of its own employees, as well as other experts in both the pea growing and processing industry, who testified that unseasonably cool weather [811]*811(daytime temperature in the 60° range) in mid-July, followed by warm weather in late July (daytime temperature in the 80’s), caused much of the pea crops to mature at once. Defendant’s witnesses then testified that because of contract commitments to other growers, it did not have sufficient vining machines (even though committing 28 machines more than it ordinarily used) in the area to handle all of the peas which were ready for harvest at the same time. Consequently, it was necessary to bypass plaintiff’s 63 acres, along with acreage of other growers.

The testimony showed that defendant staggered plantings with plaintiff and other growers in 1968, as it had in prior years, to prevent an excessive amount of simultaneous maturing of the crops. However, no planting schedules other than plaintiff’s were offered in evidence, nor did defendant show that its planting schedules for prior years, in which no bypassing of crops was required, corresponded with its planting schedules for 1968. The testimony did show that in 1968 defendant contracted for 12,200 acres of peas, which was 200 more acres than it had harvested in 1967, and that it bypassed approximately 600 acres in 1968, including plaintiff’s 63 acres.

There was no testimony that “adverse weather” per se affected the quality of the crop, or that “adverse weather” prevented the harvest of plaintiff’s crop when it had reached optimum maturity. There was likewise no testimony that the “adverse weather” bypass clause was by custom of the industry interpreted in light of the total contract commitments of the processors, nor was there any evidence of the custom of the industry with reference to how much acreage was normally contracted for by a processor in light of its capacity to harvest. There was also an absence of evidence that defendant in 1968 had contracted for a normal and usual amount of acreage in light of its equipment capacity. Defendant concedes its contractual obligation to pay $105 per acre for the bypassed acreage.

The contract, a mimeographed form prepared by defendant, contains no definition of the term “adverse weather [812]*812conditions” and, except for the following provision, does not refer to defendant’s contract commitments for 1968 with other growers.

In Twin City scheduling of time for cutting and delivery, Twin City does not guarantee selection of most desirable time for maximum return of grade or tonnage and is obligated only to schedule crops in good faith for efficient harvesting and handling of the crop contracted hereby and by other similar contracts with other growers.

The issue presented is whether or not there was sufficient evidence for the trial court to find that the “adverse weather” condition was met, so as to excuse defendant’s duty to perform its contractual obligation to harvest plaintiff’s pea crop.

It is axiomatic that the primary goal in construing the terms or conditions of a contract is to ascertain the bilateral intention of the parties at the time of contracting. Dennis v. Southworth, 2 Wn. App. 115, 467 P.2d 330 (1970); Eagle Ins. Co. v. Albright, 3 Wn. App. 256, 474 P.2d 920 (1970); Grant County Constrs. v. E. V. Lane Corp., 77 Wn.2d 110, 459 P.2d 947 (1969).

The trial court, in holding in favor of defendant, construed the phrase “adverse weather conditions . . . that may delay harvest of the green pea crop beyond the optimum maturity for processing” to mean weather conditions which caused too many acres of green peas to reach optimum maturity at one time, so that defendant’s facilities were not adequate to accommodate all of its contract commitments.

We think such a construction was not warranted from the evidence as to the bilateral intention of the parties at the time of contracting, nor does such a construction give effect to the plain meaning of the disputed clause, nor is it consonant with other rules of construction normally used as aids to ascertaining the bilateral meaning intended.

[813]*813Defendant’s proof went no further than to show that the July weather in 1968 was variable,2 causing more simultaneous ripening of the pea crops than its facilities would handle.3 Defendant’s field manager, Robert D. Murphy, did testify that despite the “adverse weather” his company was able to harvest its full quota of peas for 1968.

If the phrase “adverse weather conditions” were to have such an unusual meaning, it seems to us that such a specific meaning could have been included in the contract or established as the well-known meaning of the term by the industry. This is particularly true where the urged construction leaves the grower’s chances of a successful harvest dependent not only upon favorable weather conditions, but also dependent upon how much acreage the processor has contracted with other growers and which acreage the processor chooses to harvest, where weather conditions are less than ideal.

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Related

Stender v. Twin City Foods, Inc.
510 P.2d 221 (Washington Supreme Court, 1973)
Elte, Inc. v. S. S. Mullen, Inc.
469 F.2d 1127 (Ninth Circuit, 1972)

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Bluebook (online)
490 P.2d 1311, 5 Wash. App. 809, 1971 Wash. App. LEXIS 1124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stender-v-twin-city-foods-inc-washctapp-1971.