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District Court of Appeal, Fourth District, California.


Civ. 2196

Decided: September 15, 1939

Theodore G. Krumm, of San Bernardino, for appellant. Howell W. Richardson, of San Bernardino, for respondent.

This is a motion to dismiss this appeal or affirm the judgment on the grounds (1) that defendant failed to file its brief within the time allowed by law, and (2) that the grounds upon which the decision of the cause depends are so unsubstantial as not to need further argument.

The motion to dismiss was noticed for the calendar called on September 12, 1939. Defendant's opening brief was filed on September 11, 1939, and was on file at the time the motion to dismiss was made in open court. This has been held sufficient reason for the denial of a motion made on the first ground. Lisle v. Ragle, 10 Cal.App.2d 758, 52 P.2d 608, and cases cited.

The action is one for the damages for breach of contract. Plaintiff and certain of his assignors sold or contracted for the sale of their crops of oranges to defendant. The crops were subsequently severely damaged by frost. The principal question argued in the opening brief is whether title to the fruit passed to defendant on the execution of the contracts or remained in the growers until the fruit was picked, delivered and prepared for market. We are informed that in separate actions two of the judges of the superior court of San Bernardino county reached opposite conclusions on this question.

No portion of the contracts are set forth in the moving papers. Fragments of one of them are quoted in the opening brief. It is apparent that we must have the contracts before us to properly construe them. This involves a study of the transcripts.

This court has consistently denied motions to dismiss appeals made on the second ground where intelligent consideration of the motions required us to examine the moving papers, the opening briefs and the records on appeal. Brown v. Gow, 126 Cal.App. 113, 14 P.2d 322; Thompson v. Boyer, 127 Cal.App. 149, 15 P.2d 541; North v. Evans, 136 Cal.App. 434, 28 P.2d 938; Lennon v. Woodbury, 1 Cal.App.2d 381, 36 P.2d 415; Barr v. Hall, 9 Cal.App.2d 426, 49 P.2d 1124.

A reading of the portions of the contract set forth and summarized in the opening brief shows that the questions to be decided on the appeal are close and will need careful study. Under such circumstances we should have the assistance of additional briefs from counsel.

The motion is denied.

MARKS, Acting Presiding Justice.

I concur: GRIFFIN, J.