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District Court of Appeal, First District, Division 2, California.


Civ. 10161.

Decided: December 16, 1936

Decoto & St. Sure, of Oakland, for appellant. Edward M. Selby, of Los Angeles, and Milton L. Selby and Drummond Wilde, both of Oakland, for respondent.

In an action brought to recover moneys alleged to be due under a written instrument, the trial court made findings in favor of the defendant, and from the judgment entered the plaintiff has appealed.

On January 17, 1931, Cooperative Dairymen's League, a corporation, entered into a contract with Dairyland Products, Inc., under the terms of which the former agreed to sell and the latter agreed to buy the marketable cow's milk delivered by the seller. The contract was in writing and contained certain blanks to be filled but they were never filled. One of such provisions was as follows: “Term of contract: This agreement shall be and remain in force for the period of six months from the –––– day of ––––, 190––, to the –––– day of ––––, 19––, inclusive, and thereafter from month to month until terminated by either party hereto by giving sixty (60) days notice in writing to the other of its desire to terminate.” That contract was modified on July 17, 1931. The latter instrument provided: “* * * the contract shall continue in force for one (1) year from the 17th day of July, 1931, to the 17th day of July, 1932.” Thereafter, on May 2, 1932, the Lucerne Cream & Butter Company took over the Dairyland creamery in Oakland. On May 6th an agreement was executed by Cooperative Dairymen's League as seller and Lucerne Cream & Butter Company as buyer. It refers to and adopts the original agreement and the agreement of modification just above referred to. For the convenience of the parties the Lucerne executed de novo the agreement dated January 17, 1931, and the agreement dated July 17, 1931, and forwarded them to the Cooperative Dairymen's League together with a letter in which it was stated: “The enclosed agreements are intended to supersede the agreements executed by Dairyland Products, Inc., effective as of the date upon which we acquired the assets formerly owned by Dairyland Products, Inc.” On the contract so evidenced the plaintiff sued for moneys which it claimed fell due from May, 1932, to March, 1933, both months inclusive.

The plaintiff contends that the original contract between the parties as modified by the supplemental agreement of May 6, 1932, remained in full force and effect until March 31, 1933. As noted above, the instrument dated January 17, 1931, by failing to fill in the blanks, did not state any date of termination. The instrument dated July 17, 1931, expressly provided that it would terminate on the 17th day of July, 1932. The agreement dated May 6, 1932, was silent on the subject. During the trial the plaintiff contended that it had the right by parol to show that the contract was extended to March 31, 1933. Streff v. Gold Medal Creamery Co., 96 Cal.App. 18, 273 P. 831; Dunham, Carrigan & Hayden Co. v. Thermoid Rubber Co., 84 Cal.App. 669, 258 P. 663. It is sufficient to state that evidence was offered and received from both parties on that issue. The trial court made a finding thereon in favor of the defendant. It follows that the contention of the plaintiff may not be sustained.

The plaintiff's second and third points are closely related. In both it claims that some market milk was paid for as manufacturing milk. The vice in that contention is that the contract expressly so provided. There was considerable evidence introduced and the court found the facts to be that from other parties the defendant bought quantities of “surplus milk”; it bought from this plaintiff market milk and paid therefor according to the amount of butter fat it contained as provided in the supplemental agreement dated May 6, 1932; and it also bought from this plaintiff a large quantity of “surplus milk” which it used for manufacturing purposes and paid therefor the price for manufacturing milk as stated in the same agreement. The evidence shows that upon receipt, each delivery was weighed and tested. Each party kept its own account. The deliveries were not kept separate but were mixed. Assuming, for the purposes of the points we are now discussing, that all three of the agreements were in force from May 6, 1932, to March 31, 1933, according to their terms the defendant agreed to “* * * purchase from seller all market milk which buyer may or will market * * *.” The uncontradicted testimony was that all milk in excess of the amount necessary for use by the defendant for market milk purposes is “surplus milk.” The terms are exclusive. Under the modified contract of May 6, 1932, all milk pasteurized by the defendant was “to be paid for at the full base prices for market milk” and “milk other than route returns, used for manufacturing purposes by the buyer” was to be paid for on an average to be made as stated in the contract. Both of those quantities were, of course, confined to the milk received under the written contracts as “market milk.” No covenant set a price on “surplus milk,” but it was paid for as manufacturing milk. Counsel do not call to our attention any part of the record showing that market milk received and used as such was not paid for as such; nor that any market milk used for manufacturing purposes was not paid for; nor that any surplus milk received as such was not paid for as such. There was no evidence that any milk received from plaintiff as market milk and used by the defendant for that purpose was paid for as manufacturing milk; nor, if there was any such item, the amount thereof. In other words, the plaintiff assumes all milk received by defendant, with the exception of the deliveries made by Mini Estate Company, was received by it under the three written instruments hereinabove referred to. But as we have shown it was not all received under said contracts. Much was received otherwise. Then all was so mixed that the deliveries lost their identity and the bookkeeping accounts do not furnish the data from which the computations relied on by the plaintiff can be correctly compiled.

The last point made by the plaintiff is that the trial court committed prejudicial error because it found the contract between the parties was not exclusive and it failed to find on material issues raised by the pleadings. To show the contract was exclusive the plaintiff quotes from the instrument dated January 17, 1931. That document contained this sentence: “It being of the essence hereof that seller shall be the sole and exclusive source or agency from or through which buyer shall, may or will purchase additional market milk during said period.” True it is that said sentence contains language which would tend to support the contention of the plaintiff. True it is that said sentence was not thereafter stricken out of the contract between the parties. However, on May 6, 1932, the parties executed the last written instrument expressing their intentions. It contained several paragraphs. To refute the position of the plaintiff we think it is sufficient to quote the following: “3. Buyer shall report to seller weekly on seller's present standard ‘Form One’ all milk received by buyer from all sources; including milk received from seller, from independent producers, from ranches of buyer, or from other dealers.” Bearing in mind that the original contract was executed by Dairyland Products, Inc., and that the supplemental instrument was executed by the Lucerne Cream & Butter Company, it is quite clear the covenants of the parties as expressed in the earlier agreement were materially changed in the last agreement.

As a part of the last point the plaintiff claims certain material issues were not found upon. It shows that the defendant pleaded certain stated accounts and it asserts no finding thereon was made. Paragraph IV purports to be a finding on the issues mentioned. At least by implication it is a finding on the entire issue. Shepard v. Yale, 94 Cal.App. 104, 270 P. 742; Wolvin v. First Methodist Episcopal Church, 111 Cal.App. 643, 295 P. 1085. Furthermore, as the court had made full findings on the allegations of the plaintiff's complaint and such findings were adverse to the plaintiff and supported the judgment, it was immaterial whether the affirmative defense set up in defendant's answer was, or was not, true. Wolfsen v. Smyer, 178 Cal. 775, 785, 786, 175 P. 10.

We find no error in the record.

The judgment is affirmed.


We concur: NOURSE, P. J., SPENCE, J.