CASE v. KADOTA FIG ASS OF PRODUCERS (1949)

Case–Swayne Company sued Kadota Association and its individual members for breach of contract and Yosemite Growers Co-op Association, a corporation, for inducing the breach.   The defendant Kadota cross-complained alleging a breach of the contract, praying cancellation, recovery of money due and damages and an accounting.   Yosemite Growers filed a cross-complaint for recovery under another contract.   Judgment went against Case–Swayne denying them any relief on their complaint and in favor of both Kadota and Yosemite Growers on their respective cross-complaints.   Kadota Fig Association of Producers is herein referred to as “Kadota,” defendant Yosemite Growers Co-op Association as “Yosemite.”

Kadota is an unincorporated fig growers association formed by an agreement of May 10, 1938.   The principal place of business is in Merced.   It is directed by a Board of Trustees, of which defendant R.D. Leuschner was chairman.   Originally it acted only as a marketing cooperative.   In the years 1943–1944 the agreement of association was amended so as to make funds available for the building of a cannery.   Some of the original members, defendants in these proceedings, deny that the amendments and resolutions as to the cannery project are binding on them.

The building of the cannery began April 24, 1944.   At that time Kadota had already started negotiations to obtain the cooperation of Paul W. Case and Amos C. Swayne, then working in important positions with another canning concern.

Case and Swayne associated for the purpose of this cooperation into a partnership, Case–Swayne Company, which on June 1, 1944, entered into an agreement in writing with Kadota as to the operation of the cannery, which was being erected.   Later in the year 1944 the other three appellants entered into the partnership.

The agreement contains provisions to the effect that Case–Swayne Company would provide Kadota with the services of Swayne for the direction of the processing of figs and of Case for the marketing of fig products in the western territory.   During the fig canning season Swayne would have to give his entire time;  at other times his supervision and direction of further processing of fig and fig products could be combined with canning operations of Case–Swayne Company itself if Kadota's operations were fully provided for.   Swayne would also direct and supervise the current maintenance and repair of Kadota's machinery and equipment and the annual general overhaul.   Case was never required to give his entire time.   The company would receive for the services of Swayne $20,000 annually of which $10,000 was payable on September 1st and $10,000 on November 1st of each year, and moreover 10% of the annual savings effected by his services, and for the services of Case a commission on the net sales and reimbursement of office and travelling expenses connected with them.   Case–Swayne Company was granted the right to operate the cannery upon its own account and responsibility for the processing of vegetables and fruits other than figs when not required for Kadota's fig processing, and even contemporaneously with it if not interfering in the opinion of Kadota with its operation.   For the use of the cannery equipment and facilities Case–Swayne Company had to pay Kadota a certain amount for each case the company packed.   The agreement was made for the period of June 1, 1944, until May 30, 1947, with annual continuation thereafter.   Case–Swayne Company could install supplementary machinery to be removed on termination of the contract.   Each party would pay its own direct costs, Kadota the current maintenance and repair and annual overhaul of its machinery.   Field warehouse expense would be allocated on the basis of case day use, other joint expenses in proportion to the number of cases packed by each;  accounting to be made quarterly, costs to be laid out by Kadota.   Each party would keep its own books and permit inspection to the other or its agent.   The personal services of Case and Swayne to Kadota are expressly stated to be a material consideration for the execution of the agreement.

While the cannery was being built an agreement was negotiated between Case–Swayne Company and Yosemite for the processing of the peaches of Yosemite in the cannery as a joint venture.   Although Yosemite was an organization completely separate from Kadota, there was a strong personal connection as R.D. Leuschner, the chairman and general manager of Kadota, was also secretary and general manager of Yosemite.   The processing of peaches began on August 7, 1944, in the uncompleted cannery.   The written agreement signed August 12, 1944, provided that Yosemite was to supply the peaches, Case–Swayne Company all other materials and processing and sales service.   Provisionally all amounts received by Case–Swayne Company from the sale of the peach products were to be credited to the bank account of Yosemite except certain amounts for estimated processing costs to be retained by Case–Swayne Company, subject to later definitive division:  Yosemite would then receive an agreed price per ton for all peaches delivered by its members, Case–Swayne Company its actual packing costs inclusive of $.20 per case as plant rental for Kadota, but no salaries of Case or Swayne would be charged as costs;  the profit remaining would be divided equally up to $32 per ton, the excess to go one-fourth to Case–Swayne Company, three-fourths to Yosemite.   Such adjustment was to be made on or prior to October 1st pending a final accounting and audit as per December 31st.   In case of disagreement as to computation or allocation of costs the determination was to be made by an accountant to be selected by the parties.   The agreement was made only for the 1944 peach crop.   The agreed provisional deposit of funds received by Case–Swayne Company was amended in a writing of August 14, 1944, to the effect that Case–Swayne Company would try to sell the whole pack to the United States Quartermaster for $12.30 per dozen (2 cases), would take a loan advance of $5 per case of which $2 would be paid to Yosemite, $3 to go toward paying Case–Swayne Company's operating expenses;  the remaining $2.30 per dozen Case–Swayne Company would collect for its own account.   The above would not change the agreed final settlement.   Most of the pack was sold in advance in that manner to the United States Quartermaster.   The canning took place in August and the beginning of September;  in the latter month it was combined with the canning of the figs of Kadota which took place in September and October.   During this period the cannery was incomplete and partly open.   The mechanical system intended to be installed for the automatic movement of cans had not been put in.

There is conflicting evidence as to whether the services of Case and Swayne were satisfactory and of the relations with Case–Swayne Company during that period.   Mr. Leuschner testified that from the beginning Swayne took insufficient care of the cleanliness of the plant and of screening or covering to keep insects out of the syrup and the finished products, and did not comply with Leuschner's orders in this respect.   The plant was under continuous inspection for official grading of qualities of the canned products by the United States Department of Agriculture.   According to the daily reports of that service and the testimony of the inspector the sanitation was as a rule not unsatisfactory and the compliance with remarks of the inspector sufficient.   All products canned for Kadota or Yosemite made the grades for which they were intended except a small quantity of fig jam canned on September 27.   Mr. Leuschner also testified to loss of fruit through delays in canning because Case and Swayne ran out of cans, sugar or pectin.

According to Mr. Leuschner, Yosemite had from the beginning difficulty in getting timely payment of the money due it under the agreement of August 12.   His contentions as to very large amounts (over $100,000) retained by Case–Swayne Company seem not to take into consideration the amendment of the provisions for temporary deposits by letter of August 14, 1944.   In accordance with the agreement Case–Swayne Company on October 3, 1944, sent a tentative statement of division of profits subject to final adjustments as of December 31, 1944.   This statement showed that as of September 19, 1944, Yosemite was entitled to nearly $56,000 profits over and above the price of the fruit paid to its members.   The provisional cash payments to the amount of more than $134,000 made by Case–Swayne Company covered the price of the fruit and Yosemite's share of profit except for approximately $16,000 as to which Case–Swayne Company asked deferment of payment until outstanding invoices would be paid.   There was as of September 19 still a certain inventory of goods to be sold.   According to Mr. Leuschner he asked further information as to this accounting, but no selection of an accountant for the determination of costs in dispute was proposed.

Kadota paid both installments of $10,000 due for Swayne's services without protest or reservation, the last in accordance with the agreement on November 1, 1944.

After the end of the fig canning, Case–Swayne Company continued canning of different products in the Kadota cannery on a large scale for its own account until the canning was stopped in June, 1945, by measures of Kadota.   In the beginning of 1945 Case–Swayne Company acquired a plant of its own in Santa Ana.   Mr. Leuschner was informed of this fact in advance by letter of January 12, 1945, and did not protest.   A second plant, in Portland, was purchased by Case–Swayne Company in June, 1945, just before the culmination of the conflict between the parties.

Until March, 1945, there were no very serious difficulties.   On November 16, 1944, Kadota expressed its dissatisfaction as to maintenance of cleanliness in the plant in writing and listed several desires, but Swayne promised full compliance.   In general the government inspector remained satisfied except that 9000 cases of Case–Swayne grape jam were not certified for government use and therefore sold elsewhere.   Mr. Leuschner further testified that the installations were not completed before the 1944 fig season and the necessary repairs were being postponed.   In the middle of January there were conferences of Mr. Leuschner and Mr. Swayne with the principal engineering and managing personnel as to the plan in this respect and Mr. Swayne drew a memorandum as to the improvements to be considered before the 1945 operation and budgets for repair work and new work to be done.   Later it would become one of the main grievances of Kadota that this work was unduly neglected and preference given to work in which Case–Swayne Company had a more immediate interest.   Mr. Leuschner testified also that the difficulties to get money and further information from Case–Swayne Company in behalf of Yosemite continued but there never was any demand in writing, and when Case–Swayne Company asked to change the date for final accounting from December 31 to January 10 this was “entirely satisfactory” to Yosemite.   A further postponement of the date to January 31 was also acceded to when on February 6 a check of $15,000 was given on account.   In a letter of February 28, 1945, Yosemite asked Case–Swayne Company about the possibility of an arrangement for the packing of the peach crop of 1945 similar to that of 1944.   The final report of the peach packing as of January 31, 1945, was transmitted on March 8.   It was signed by Wayne Mayhew & Co., certified public accountants.   It showed a balance still due Yosemite of $2,272.39 for which a check was enclosed.   The check was cashed, no objections to the accounting were made or selection of an accountant to make determination as foreseen in the agreement proposed.   There is evidence that Mr. Leuschner immediately contacted his own accountant, Mr. Hershey, who then had no time available and who contacted Case–Swayne Company only at the end of April.   Case–Swayne Company then required a letter of authority of Yosemite to examine the records.

At that time the relations of the parties had seriously deteriorated.   On March 12, 1945, Case–Swayne Company had submitted to Yosemite a draft of a new provisional agreement as to the canning of the 1945 peach crop, much more advantageous to Case–Swayne Company than the preceding one.   Yosemite had not reacted.   On or about April 17 Kadota took the position that prorations and settlements made between it and Case–Swayne Company were not in accordance with their contract and should be considered tentative pending complete auditing.   In a letter on the same subject of April 28 Kadota complains of the charging to it of current maintenance and repair of machinery and prorating of costs in quarterly periods in which Case–Swayne Company was solely operating the plant and of the use of Kadota's labor and material for the installation and construction of machinery of Case–Swayne Company, of use by Case–Swayne Company of boxes without remuneration and insufficient prorating of costs of warehouse equipment.   In this same letter Kadota asks Case–Swayne Company's suggestion as to a convenient time for shut-down for the annual overhaul.   In the answer to this letter of May 9, 1945, Case–Swayne Company maintains that the practice followed by the parties was in accordance with their agreement and binding, and that there was no reason for a shut-down, according to Mr. Swayne, as the annual overhaul was in progress since the end of the 1944 fig season and could be completed without shut-down before the 1945 fig season.

At the meeting of Kadota on May 15th it was decided to proceed to terminate the agreement with Case–Swayne Company as soon as possible.   At the same meeting there was a discussion of a draft agreement with Yosemite for the operation to joint advantage of the cannery and a freezing and cold storage plant to be built by Yosemite near the cannery, negotiations for which agreement had been in progress for some time.   Mr. Leuschner testified that about that time he dismissed Case and Swayne.   Court action was instituted in Merced by Kadota on May 24, 1945, by Yosemite on May 28, 1945.   Accountant Hershey, who in the middle of May returned for inspection provided with an authority of Yosemite, was asked to return May 21st when the accountant of Case–Swayne Company would be present and was then not shown the books but given information from them by the accountant.   He testified that he only got full inspection by court order during the present proceedings.   In the middle of May, Kadota began to make changes in the former routine which, according to Case–Swayne Company, interfered with its operations.   On May 11th empty barrels of Case–Swayne Company were removed from the platform of the cannery and heavy equipment of Yosemite put in their place;  on May 24 a jam line then in use by Case–Swayne Company for its canning of asparagus was dismantled by Kadota to install other equipment;  beginning May 26 the storeroom was locked overnight also at times that Case–Swayne Company was working and would need replacement parts.   On June 4 Kadota forbade mechanics to use any tools of the cannery in connection with Case–Swayne Company operations and terminated the use of its mechanics for those operations.   On June 5 both lift trucks of the cannery in use with Case–Swayne were removed at the same time, without previous notice, for repair.   On June 9 Kadota informed Case–Swayne Company that processing in the plant had to end because of maintenance repair and installation operations and on the same day Kadota forced Case–Swayne Company to close its operation by cutting off the steam and locking the boiler room.   Kadota took possession of the cannery.   On June 15th an agreement between Kadota and Yosemite as to the operation of the cannery and freezing plant was signed.   The cannery reopened and the canning of apricot jam by Kadota started June 25, 1945.

The original complaint of Case–Swayne Company in this case is based on the above interferences with and termination of its operations considered as breaches of the agreement of June, 1944.   The defendants were Kadota, all of its original members by name, among which R.D. Leuschner and Bear Creek Company, a company controlled by him, which had the technical management of the Kadota marketing, and moreover Yosemite, not a member of Kadota.   The first count, directed against all defendants except Yosemite charges them with the above breaches;  the second count charges Yosemite with maliciously inducing the above breaches for the purpose of replacing Case–Swayne Company in the operation of the cannery;  the third is to the same effect with respect to defendants R.D. Leuschner and Bear Creek Company;  the fourth count charges all defendants with conspiracy to bring about the breaches.   The prayer is for large amounts of damages including exemplary damages, and as to Kadota in addition for restitution of certain excess warehouse charges paid under protest and for a contractual percentage of alleged savings on the costs of Kadota's fig processing due under the contract.

There were three separate answers;  Kadota and several other defendants, among whom were R.D. Leuschner and Yosemite, admitted entering into the agreement but denied the alleged breaches and damages and denied that Case–Swayne Company itself had complied with the terms and conditions of the agreement.   An amended answer of these defendants alleged further that plaintiffs by other activities could have prevented all future damage and incorporated by reference the allegations of the cross-complaint of Kadota to be mentioned hereafter.

The answer of several other defendants, sued as members of Kadota, among whom was Isabel Dibblee, moreover denied that they entered into the agreement with Case–Swayne Company.

A third answer, of the defendant Capital Company, which denied membership in Kadota, and was dismissed from the case, is not involved in this appeal.

There were also three separate cross-complaints.   Kadota filed a cross-complaint in its own name as a growers cooperative association.   This cross-complaint was based on a great number of alleged breaches of contract and misconduct by Case, Swayne and their company which entitled Kadota to terminate the confidential contractual relation and to an accounting and damages.   The alleged breaches relate mostly to the maintenance, repair and installation of machinery and to the absence of Case and Swayne on their own business to a larger extent than compatible with the interest of Kadota;  and the alleged misconduct to the submission to Yosemite of the final accounting which allegedly was padded deliberately in a fraudulent manner, the alleged bribing of employees of Kadota to obtain more advantages than appellants were entitled to under their contract with Kadota and some other minor points in which appellants allegedly tried to obtain an advantage over Kadota in behalf of their private business.

Appellants denied all facts alleged as justification of the termination by Kadota and moreover by demurrer, motion to strike and answer offered many defenses of law of which the only one urged on appeal is that Kadota is an unincorporated association without capacity to sue in its own name and that it had not complied with the provisions of section 2466 and 2468 of the Civil Code as required for a partnership.

The findings both as to the original action and the cross-action of Kadota were in all respects adverse to appellants except as to one count of the cross-complaint containing a claim for the use of and damage to fruit boxes, which was denied, from which ruling no appeal was taken.   The court found in substance that appellants never performed the agreement on their part and had breached it prior to any of the alleged interferences by Kadota;  each of the breaches and misconduct alleged by Kadota was found true, the interferences alleged by appellants were found reasonable under the circumstances, the taking of the cannery by Kadota and the refusal to permit further use of the premises to appellants justified by their violations, the agreement between Yosemite and Kadota lawful and not violative of appellants' rights;  Kadota was the true party in interest and had capacity to sue in its own name.   Judgment was that appellants take nothing and that Kadota recover $20,000 paid for the services of Swayne, $24,000 damages for failure to repair and install machinery and $29,655 as balance of the mutual account of the parties plus interest.

A second cross-complaint, of Yosemite, was for fraudulent overcharges and incorrect division of profits in the final accounting of the peach contract in the amount of $43,399.76 diminished in the amended cross-complaint to $20,438.99.   Appellants by answer maintained the correctness of said final accounting, made independently by qualified accountants, that the balance due according to the accounting had been accepted without reservation as final except for the possibility of renegotiations by the government and that no selection of an accountant to determine the computation or allocation of costs had been requested, as required by the contract, and that Yosemite did not come into court with clean hands as it knowingly superseded Case–Swayne Company in the exploitation of the Kadota cannery.   The court found that said allegations of appellants were untrue, that all payments had been made and accepted on account, that the costs in the accounting had been fraudulently padded in accordance with the allegations of Yosemite and awarded it $20,438.99 with interest in accordance with its cross-complaint.

A third cross-complaint, by Bear Creek Company, as to the use of and damages to fruit boxes, was decided adversely to cross-complainant and is not involved in this appeal.

I. Appeal as to Appellants' Original Action.

Appellants argue that if the contract between them and Kadota is correctly construed the evidence does not support the finding that the termination of such contract by Kadota was justified by conduct of appellants.   In that respect appellants contend that the court below erroneously construed the operation contract as establishing a confidential employer-employee relationship, even while Case–Swayne Company was operating the cannery for its own account, during which period most of the conduct took place which was held to justify the termination.   Although there are also findings as to violations of the contract by appellants during the period of the canning by Kadota itself which ended in October, 1944, we may assume that such conduct as was found with respect to that period, even if supported by the evidence, could not justify the termination in May or June, 1945, if in the meantime no other reprehensible conduct of appellants had occurred, the more so as at the end of the fig canning Kadota with full knowledge of all circumstances paid the remuneration for Swayne's services without reservation.

Appellants contend that the agreement between them and Kadota is of the character of a lease combined with an agreement of Case–Swayne Company to provide management services as an independent contractor and that termination could be based only on the restricted grounds sufficient for the termination of a lease.   Citing Beckett v. City of Paris Dry Goods Co., 14 Cal.2d 633, 96 P.2d 122.   We cannot agree with this contention.   The court found that Case and Swayne were employed by Kadota in a confidential relation and that the contract further gave Case–Swayne Company a license to possess and use the cannery.   This finding is not unsupported or erroneous.   An employer-employee relation is the normal relation in which the work of managing personnel such as that of Case and Swayne is performed.   The terminology of the agreement points to the intention to create the same relation here, for instance in section 15 which reads:  “Company agrees that said Amos Swayne and said Paul W. Case shall each, in serving the Association as above provided, devote their best efforts to further the canning, freezing, processing, manufacturing and marketing by the Association of its fresh figs and fig products.”   Moreover appellant Paul W. Case testified that he followed all directions or instructions given by Mr. Leuschner and each policy laid down by him.   The full control and direction by the master is the essential characteristic of the master and servant relation.  Labor Code § 3000;  16 Cal.Jur. 958–959;  Counihan v. Lufstufka Bros & Co., 118 Cal.App. 602, 604, 5 P.2d 694.

The fact, stressed by appellants, that the agreement with respect to their services was not made with Case and Swayne individually but with their partnership and that the partnership was to receive the compensation does not exclude the existence of an employment relation, even if we should consider in this respect the partnership as an entity separate from the individual members.   An employer can lend or hire an employee to another, at least with the employee's consent, and there will be an employment relation with the general employer, the special employer or both depending on who has control and direction of the employee.  Industrial Indemnity Exch. v. Industrial Acc. Comm., 26 Cal.2d 130, 134, 156 P.2d 926, et seq.   Whether the borrower pays the employee directly or reimburses the lender is not decisive.   Compare 16 Cal.Jur. 959;  Independence Indemnity Co. v. Industrial Acc. Comm., 203 Cal. 51, 262 P. 757.   Although those questions as a rule come up in respect to liability for workmen's compensation, the principles apply also outside that field.   See 56 C.J.S., Master and Servant § 2, p. 38.   It would seem that in the same manner a partnership can contract to provide the labor of its members with their consent, either under control and direction of the party for whom the work is done or independently.   If, as here, the party receiving the services takes control and direction there is an employer-employee relation with the individual workers.   The fact that the payments were made by check to the order of Case–Swayne Company and booked in an account “Services purchased, Management contract,” seems in accord with the manner in which the contract was drawn and without separate significance.   That no deduction for income tax, social security, etc. were made, cannot be conclusive against an employment relation under the special circumstances, where the unusual set up of the contract caused the question of deductions to be problematic.

If the existence of an employer-employee relation is accepted, that relation continued also in some respects during the period in which Case–Swayne Company was operating the cannery on its own account.   According to section 2, last sentence of the agreement, Amos Swayne was still to direct and supervise the current maintenance and repair of Kadota's machinery and equipment and the annual general overhaul and Paul W. Case's marketing activities as to figs could well be required at a time that Case–Swayne Company was canning other products.   Moreover there remained in the future the next fig season during which the services of Case and Swayne on a larger scale would be resumed and for which preparations might be required in advance.

It is true that the canning operations of Case–Swayne Company with respect to other products than figs were themselves not performed in an employment relation to Kadota.   Section 6 of the agreement contains a statement to the effect that the processing of fruits other than figs “shall be solely by the (Case–Swayne) Company, at its sole expense and upon its own account and responsibility,” and the last paragraph of section 11 reads:  “The operations to be performed pursuant to this Agreement are not in any sense to be deemed a joint venture or partnership arrangement between the Association (Kadota) and Company.   In substance, each party is canning, freezing, processing, and manufacturing its own products at its own risk and expense, but in the same plant, subject to the arrangement that the Company is furnishing the Association with certain production management and supervision and sales services in connection with the marketing of its fig products.”   These provisions obviously give Case–Swayne Company a right to can its products independently and equally, not in the employment of Kadota.

However this does not necessarily place Case–Swayne Company in the position of a lessee.   The finding that they had only a personal right of operation as against Kadota seems correct.

The test whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license.  Von Goerlitz v. Turner, 65 Cal.App.2d 425, 429, 150 P.2d 278.   A lease is not only a contract but also a conveyance;  a license is only a permission to do certain acts on the land without any interest therein.   For a lease it is essential that the instrument show an intention to establish the relationship of landlord and tenant, although no particular legal terminology is required.  Beckett v. City of Paris Dry Goods Co., 14 Cal.2d 633, 96 P.2d 122.   Whether in a particular case a license or a lease or other interest in land is created is often difficult to determine.   53 C.J.S., Licenses, § 79, p. 806;  32 Am.Jur. 30.   Similar relations (operation of another's mine or quarry, concession to have a department or booth in another's store or market) can be formulated so as to be considered either the one or the other.   In the instrument before us we do not find anything that shows the intention to create a landlord and tenant relation, or to give exclusive possession or an interest in the property over and above a personal right of operation as against Kadota.   This distinguishes our case from Beckett v. City of Paris Dry Goods Co., supra, on which appellants rely but in which an instrument for a concession to conduct an optical department in a store was held to be a lease mostly because the use of terminology like “this lease,” “good, tenantable condition,” “space demised” showed that this was the relation which the parties intended.   The provisions of the present contract cited by appellants do not contain any such characteristic terminology.   Appellants further point to the fact that Mr. Leuschner, in his deposition, indicates the agreement as the “lease.”   However his use of this word, in no way decisive in itself, is more than offset by the fact that the instrument itself is not entitled “lease” but “Operating Agreement” and that in the preamble of the contract signed between Case–Swayne Company and Yosemite it is stated:  “Whereas Case–Swayne Company, a co-partnership, has packing and marketing privileges in the Kadota plant of the Kadota Fig Association of Producers.”  (Emphasis ours.)

In the course of the performance of the operating agreement by the parties no exclusive possession of the cannery was ever delivered to Case–Swayne Company.   Although the right to operate given in paragraph 6 of the agreement relates to the cannery as a whole, Kadota at all times retained offices, workmen and supervisory personnel in it.   This practical construction by the parties also points more to a license to operate than to a lease.

Moreover there are certain other points in the agreement which make it most unlikely that the parties should have intended to give Case–Swayne Company a leasehold interest in the cannery which might enable it to retain possession under circumstances which would entitle Kadota to terminate the management, supervision and sales agreement because of breach.   The preamble of the agreement mentions only the desire to obtain and provide experienced production and sales managers for Kadota's fig processing and marketing, not the operation of the cannery by Case–Swayne Company and paragraph 15 contains the sentence, “The rendering by each of said individuals (Case and Swayne) of their personal services shall be deemed to be a material consideration for the execution of this agreement.”   Stated in other words:  Failure of Case or Swayne to render their services will be considered material failure of consideration as to the whole agreement.   The preamble and paragraph 15 seem drawn expressly for the purpose of preventing a construction as advocated by appellants.

It must be conceded that if the construction of the agreement as a license to operate would necessarily result in that operating license being arbitrarily revocable at any time without liability for damages, such construction could not be accepted.   However, the rule of revocability of a license at pleasure is not without modifications and exceptions.  Bryant v. Marstelle, 76 Cal.App.2d 740, 746, 173 P.2d 846.   Where, as here, a license is given as part of a contract for a certain time, revocation may constitute a breach of the agreement and give rise to an action for damages as instituted herein by appellants.  33 Am.Jur. 407–408;  Baseball Pub. Co. v. Bruton, 302 Mass. 54, 18 N.E.2d 362, 119 A.L.R. 1518, 1522.

The agreement linked together indivisibly two elements, an employment relation of Case and Swayne, mostly during the fig processing period but not abrogated during other periods with personal rights of Case–Swayne Company as against Kadota for the operation of the cannery during such other periods.   This employment relation was confidential in character.   This follows necessarily, not only from the managerial character of the services but also from the close cooperation between Case–Swayne Company and Kadota required by the terms of their agreement;  canning of Case–Swayne Company for its own account and canning of Kadota under direction and supervision of Swayne could sometimes go on at the same time;  Kadota would pay certain joint expenses to be allocated afterwards in the ratio of the respective production;  they used the warehouse together;  Case–Swayne Company had the right to install machinery of its own in Kadota's cannery;  whereas at the same time Swayne directed and supervised the personnel of Kadota with respect to the maintenance and repair of Kadota's machinery.   Such an intimate cooperation undoubtedly requires mutual confidence to a high degree.   The standards applicable to breach of a confidential employment relation seem in general pertinent to this case.

Appellants contend that even considered from that point of view there is, contrary to the findings, no evidence of acts or conduct on their part which would justify the termination of the agreement by Kadota, either because the alleged shortcomings are not sufficiently substantial in character or because there is no supporting evidence.   Our task with respect to this contention is restricted by well accepted rules:  Whether there has been a substantial breach or misconduct justifying termination of an agreement is considered generally a question of fact (compare Murphy v. Sheftel, 121 Cal.App. 533, 540, 9 P.2d 568;  Connell v. Higgins, 170 Cal. 541, 556–557, 150 P. 769) or maybe better a mixed question of law and fact which also, as a rule, is for the determination of the trial court, whose decision thereon is binding upon the reviewing court if supported by substantial evidence.   Compare Lee v. Nanny, 38 Cal.App.2d 90, 94, 100 P.2d 832;  Martinelli v. Stabnau, 11 Cal.App.2d 38, 40, 52 P.2d 956;  Hillen v. Industrial Acc. Comm., 199 Cal. 577, 580, 250 P. 570;  Loper v. Morrison, 23 Cal.2d 600, 605, 145 P.2d 1.   Only in situations so marked that the reviewing court can say that no other conclusion can reasonably be supported than that there was (or was not) a substantial breach does the matter become a question of law to be decided by the appellate court.   Moreover, if there is any finding sustained by the evidence upon which the judgment may rest it will be regarded as the one upon which the judgment did rest and the others will be disregarded.   American National Bank v. Donnellan, 170 Cal. 9, 15, 148 P. 188, Ann.Cas.1917C, 744;  Owen v. Cohen, 19 Cal.2d 147, 151, 119 P.2d 713;  Huebotter v. Follett, 27 Cal.2d 765, 770, 167 P.2d 193;  Moore v. Mosher, 88 Cal.App.2d 324, 198 P.2d 714.

If therefore there is any substantial evidence that appellants have, as found, wilfully violated their contractual duties, have neglected the interests of Kadota and have given preference to their own business interests with respect to the maintenance, repair and installation of the machinery and equipment and the annual general overhaul that alone will support the decision with respect to appellants' original action and the more problematic instances of alleged misconduct can be disregarded by us.

Even with respect to maintenance, installation and repair, the evidence was strongly conflicting.   However the following evidence can be considered to support the decision.

Mr. Leuschner testified that at the close of the 1944 fig canning season he told Mr. Swayne that he wished the installation of machinery, including automatic can runs and a fourth canning production line, immediately completed.   Mr. Swayne said that they would get it done.   In the middle of January Mr. Leuschner took the matter up again as nothing in that respect was being done and only products for Case–Swayne Company were being run.   He was informed that plans were being made and would be carried out very shortly.   The third week in February he spoke with Mr. Case about the upkeep of a filler and jam line, and was told that it would be done very shortly when Case–Swayne Company's apple butter run would be finished, but it was never done.   Mr. Leuschner had difficulty finding either Case or Swayne because they were not there very often.

With respect to the condition of the machinery of the cannery on May 9th at which time Case–Swayne Company wrote that no shut-down for annual overhaul was necessary, Mr. Leuschner testified:  The boilers had not been washed down for five weeks;  they had to be retubed because of sludge of hard water blisters and sprung tubes;  the fronts were buckled by overheating.   In the place where the belts for handling the fig crop should be installed Case–Swayne Company installed an asparagus cutting and washing machine for their convenience and all Kadota's skilled mechanics had been used to manufacture that asparagus machinery instead of being used on Kadota's mechanical transportation equipment so that on May 9 that work was so far delayed that it was almost impossible to get it going that fall.   The fourth production line had not been installed and nothing done to complete that installation.   Nothing had been done on the automatic can runs and other mechanical transportation equipment requiring skilled welders.   The absence of mechanical transportation would necessitate large expense for manual handling.   Even with the assistance of men of the Pacific Can Company the mechanical equipment could not be completed before September 20, 1945, although work on it was started immediately when Kadota got possession of the cannery.  (The 1945 fig season started August 16 or 18.)   The important No. 10 jam line had still not been repaired, nor replacement parts ordered.   Three of the coolers were in such bad state that they could not be run continuously and the repair was very nearly a two-months' job.   From May 9 to June 8 or 9 (when Kadota took possession) nothing was done toward maintenance and upkeep.

The witness, De Jonckheere, master mechanic of Kadota, testified that the condition of the plant about the 8th or 9th of June was such that it was necessary to have all the men they could possibly get together work 7 days a week and work 4 hours overtime a day to get the plant in operation.   The gutters were dirty;  the seals on them had to be broken and the gutters cleaned out.   It was not true that overhaul was going on all the time (before Kadota took over).   Some of the new construction work was being worked on but no repairs and overhaul.   It would have been possible to run one or two lines during the overhaul.   Part of the asparagus operation was in the way of the installation of the “D” line of the fig run, which took about 40 days to install.   The plant was completely shut down until the middle of August but part was being run since June 25.

It is true that there was also substantial evidence which would have supported the opposite finding with respect to this point, among which the excerpts made from Kadota's administration showing on what work the labor of its mechanics was used and the evidence as to canning of other products by Kadota prior to the 1945 fig canning.   However such evidence only caused a conflict, solved by the trial court adversely to appellants, and binding on this appeal.

It is also true that the agreement did not expressly charge Case or Swayne with the direction and supervision of the installation of new equipment and that no supplemental agreement to that effect is pleaded.   However, Mr. Leuschner testified without objection to an understanding with Case and Swayne to that effect and the sufficiency of the measures taken by Swayne as to new installation was tried as if it were at issue.   Amos Swayne himself testified at length as to his activities in this respect.   It must therefore be held that direction and supervision of the new installation was by practical construction of the parties made part of Swayne's duties and that neglect or misconduct in that respect if supported by the evidence could be considered ground for termination of the agreement.

Appellants contend that Kadota could not terminate the contract without giving appellants prior opportunity to rectify any claimed breaches.   Although such a rule may apply where the termination of the contract is based solely on failure of the other party to perform (for instance to deliver goods sold) where time is not of the essence, it does not apply to breaches as found to have been committed in this case.   If it is true that appellants used Kadota's mechanics for their own operation to such an extent as to neglect the installation and repair required for the business of Kadota and to harm its interests, such conduct would be inconsistent with the confidential relationship between the parties and constitute a positive breach of it.   Appellants do not cite any authority and none is known to us which would require a party, prior to the termination of a confidential relationship, to give the other opportunity to undo whatever breach of confidence was committed.

It is in effect conceded, as it necessarily must be, that the finding that plaintiffs had violated the contract in material respects before any breach had been committed by defendants disposes of their action based on breach by defendants or to compel performance of the contract by Kadota.  Los Angeles Corp. v. Amalgamated Oil Co., 168 Cal. 140, 143, 142 P. 46;  Rathbun v. Security Mfg. Co., 82 Cal.App. 793, 796, 256 P. 296.   If any legal ground existed for the termination, the motives which activated Kadota are wholly immaterial, 56 C.J.S., Master and Servant § 44 p. 435, and the contentions of appellants as to malice, inducing of breach and conspiracy do not require attention.   However the part of the action relating to restitution of allegedly excessive warehouse charges paid under protest after the termination of the agreement is not dependent on performance by appellants, and we must therefore review appellants' contention that the refund was erroneously denied.   Plaintiffs alleged and proved that Kadota required plaintiffs to pay fixed amounts for warehouse charges after one-sided determination by Kadota and dependent on the time of shipment of plaintiffs' goods and that plaintiffs paid these amounts under protest and reserving their right to a refund.   The amount so paid totalled $12,838.27 and related to the period since June 1, 1945.   It is conceded by appellants that if the agreement was terminated because of their breach, as was found hereinbefore, they are not entitled to have these warehouse charges calculated in accordance with the contractual provisions as such but have to pay reasonable charges.   However, they contend that the contractual calculation is the best evidence of the reasonable rental of the warehouse facilities.   The agreement provided (in section 10) that all expenses of maintaining the field warehouse and all other warehouse costs shall be prorated between the parties on the basis of the case day use.   Appellants offered in evidence a computation by their accountant showing that during the year ended May 31, 1945, plaintiffs warehoused 293,177 cases and paid as their share of joint warehouse salaries $5,570.73 amounting to $.01900 per case.   The number of cases on which warehouse charges were paid since June 1, 1945, totaled 118,203.   If .01900 per case was considered the reasonable rental only $2,245.86 would have been due.   Kadota offered a calculation of its accountant based on prorating per case of the total warehouse and shipping overhead during the fiscal year June 1, 1945, to May 31, 1946.   During that period the total overhead amounted to $44,254.81 for 375,986 cases of Kadota and Case–Swayne Company together, or a cost per case of $.1177033453.   If this amount is considered a reasonable charge per case, $13,912.88 would have been due for 118,203 cases or $1,074.61 more than actually paid by Case–Swayne Company.   The rejection of appellants' claim for refund finds support in the above calculation by Kadota's accountant.   Both parties in their calculations deviated from the contractual provision in that they were based on prorating per case instead of prorating per case day.   If we accept this deviation we cannot say that the prorating proposed by respondents based on actual total costs in the year in question is less reasonable than the one proposed by appellants based on prorating of salaries only in a preceding year.   Reasonable value is a question of fact as to which a verdict or finding is conclusive upon the appellate court if supported by any substantial evidence.  27 Cal.Jur. 234;  Spellmire v. Buttress & McClellan, Ltd., 6 Cal.App.2d 550, 44 P.2d 649.   The implied holding that the amount paid by appellants was not unreasonable must be sustained and the decision with respect to the original action of plaintiffs affirmed in toto.

II. Appeal as to Kadota's Cross-complaint.

With respect to this pleading appellants had presented many legal defenses of which only one is urged on appeal, to wit, that Kadota Fig Association of Producers, which maintained the cross-complaint solely in its business name, without stating any members or trustees, had no capacity to sue in that manner.   In the trial court this objection was sufficiently presented by demurrer to the cross-complaint, by motion to strike the same and by answer, but consistently rejected by the court, which ruled that cross-complainant had capacity to sue.   There are findings to the effect that cross-complainant is a growers cooperative association organized and operating pursuant to a certain express trust agreement under the federal Capper Volstead Act, 7 U.S.C.A. § 291 a business that has been principally interstate, and that it is not true that the cross-complaint is not brought in the name of the real parties in interest or that cross-complainant has no capacity to sue or to maintain the cross-complaint and that it is not true that the agreement pursuant to which cross-complainant is organized is not a trust agreement or declaration of trust.

It is the rule in this state that persons associated in business under a common name may be sued by such common name, Section 388, Code of Civil Procedure;  Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756, 79 A.L.R. 291, but that this relaxation of the common law rule applies only to associated defendants, whereas associated plaintiffs still have to sue in their individual names.  Holden v. Mensinger, 175 Cal. 300, 305, 165 P. 950;  Ginsberg Tile Co. v. Faraone, 99 Cal.App. 381, 384, 278 P. 866;  Agricultural Club v. Hirsch & Son, 39 Cal.App. 433, 435, 179 P. 430, 7 C.J.S., Associations, § 12, p. 35.

Respondents contend however that Kadota Fig Association is a business trust under a common name pursuant to a federal statute and as such a separate legal entity with capacity to sue.   With respect to the character of cross-complainant the following points from the agreement of association, which forms part of the record, may be mentioned:  The parties, producers of Kadota figs in California, “desire to act together in an unincorporated association, without capital stock * * * under the name and style of Kadota Fig Association of Producers * * * for the mutual benefits of the members * * * that there shall be five trustees of the Association who shall be elected each year at the June meeting of the Association by a majority vote of the members present.”   The agreement further contains not only provisions as to the authority of the trustees “to act for the Association” in certain specified matters, among which “the control over the application of the General Fund” and to perform certain other acts “in the name of the Association” but also the rights and duties of the members as to the marketing of their products through the Association and their contribution to its finances.   Such organization seems to have no more in common with a business trust than the name of “trustees” given to its officers, but even if for purpose of argument only we would consider it a business trust no other rules would be applicable to the question before us than those applicable to any unincorporated business association or partnership.   In the leading California case with respect to business trusts, Goldwater v. Oltman, 210 Cal. 408, 292 P. 624, 71 A.L.R. 871, the Supreme Court held that to business trusts no new principles of law should be applied by the courts without new legislation, 210 Cal. at page 421, 292 P. 624, 71 A.L.R. 871, and that they should be treated as true trusts or partnerships depending on the retention or nonretention of ultimate control by the members 210 Cal. at page 418, 292 P. 624, 71 A.L.R. 871.   The case approved Old River Farms Co. v. Roscoe Haegelin Co. 98 Cal.App. 331, 276 P. 1047, as “authority for the point that, where the trustees are subject to election by the shareholders, the latter exercise ultimate control of the organization, and the organization is a partnership and not a true trust.”  210 Cal. at page 420, 292 P. at page 625, 71 A.L.R. 871.   There can be no doubt that under these rules the organization before us is not a true trust but must follow the rules of partnership or unincorporated business associations.   See also Lincoln v. Superior Court, 51 Cal.App.2d 61, 67, 124 P.2d 179.   With respect to the cross-complainant itself this same conclusion was reached in Kadota Fig Ass'n v. Case–Swayne Company, 73 Cal.App.2d 796, 801, 167 P.2d 518, et seq., although it must be conceded that all statements in that case with respect to the character of Kadota Fig Association and its lack of capacity to sue are dictum.

The parties pay considerable attention to the problem whether Kadota Fig Association should be considered in general as a separate legal entity or not.   We cannot see that introducing the concept of separate legal entity into the question before us would be helpful.   We would be constrained to hold that our law considers an unincorporated association or partnership as a separate legal entity for the purpose of being sued but not as such for the purpose of suing.   Neither can we attribute any importance to the fact that the agreement of association contains a provision that the association shall conform to the requirements of the Capper–Volstead Act, 7 U.S.C.A. § 291.   This Act permits the forming of associations of producers of agricultural products, “corporate or otherwise, with or without capital stock” for the collective marketing, etc., of agricultural products in interstate commerce, if conforming to certain requirements.   The object is primarily to ensure cooperative associations that qualify thereunder immunity from prosecution under the federal antitrust laws.  7 U.S.C.A. § 291, note 1;  1930, 36 Op.Atty.Gen. 326.   It gives no indication whatever that such associations, even though not corporate, must be granted capacity to sue in their own name in state courts.   Respondents further argue that such capacity was granted to Kadota Fig Association by art. XII, sec. 4 of the California Constitution which reads:  “The term corporations, as used in this article, shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships;  and all corporations shall have the right to sue and be subject to be sued, in all Courts, in like cases as natural persons.”   However it has been held that section 4, article XII of the Constitution applies only to associations which derive their special privileges from general laws in accordance with section 1 of article XII of the Constitution, not only from agreement.   Old River Farms Co. v. Roscoe Haegelin Co., supra, 98 Cal.App. at pages 333, 334, 276 P. 1047;  Kadota Fig Ass'n v. Case–Swayne Co., supra, 73 Cal.App.2d at pages 802–803, 167 P.2d 518;  Ballantine & Sterling, California Corporation Laws, 1949 ed. p. 11.   We conclude that in general Kadota Fig Association has no capacity to bring an action in its own name.

However, the question remains whether it has capacity to do so by way of cross-complaint when sued in the original action under its own name.   The answer must depend primarily on whether the cross-complaint must be considered as an act of the defendant in the original action or as the act of a plaintiff in a new and separate action.   Although the decisions in this state as to whether an action in which a cross-complaint is filed is a single action, or consists of two separate actions are not in accord, Nicholson v. Henderson, 25 Cal.2d 375, 153 P.2d 945, the tendency of the majority of the decisions is to consider the cross-complaint as a completely separate pleading of the character of a complaint in a separate action.   In the recent case of Schrader v. Neville, Cal.App., 200 P.2d 557, in which it was held that which is the prevailing party entitled to costs should be decided independently in the original action and the cross-action, the court stated, 200 P.2d 557, 558:  “The reasons for the soundness of this rule become apparent upon consideration of the nature of a cross-complaint.   When a cross-complaint is filed with an answer to the complaint, there are then two separate and distinct causes of action simultaneously pending between the same parties wherein the plaintiff in the complaint becomes the defendant on the cross-complaint, and the defendant in the complaint becomes the plaintiff on the cross-complaint.  [Citations.]

“Referring to such a situation our Supreme Court in Pacific Finance Corp. v. Superior Court, 219 Cal. 179, 182, 25 P.2d 983, 984, 90 A.L.R. 384, thus states the rule:  ‘These cross-actions, however, are still distinct and independent causes of action, so that when properly interposed and stated the defendant becomes in respect to the matters pleaded by him, an actor, and there are two simultaneous actions pending between the same parties wherein each is at the same time both a plaintiff and a defendant.  [Citations.]   The same view has been taken by our appellate courts, for the cases recognize and establish the principle that the issues presented upon a cross-complaint and answer are entirely separate and distinct from the issues raised upon the original complaint and answer.’

“In Millar v. Millar, 51 Cal.App. at page 721, 197 P. [811], at page 813, the court quoting with approval from Pomeroy's Remedies and Remedial Rights, says:  ‘ “When a defendant files a cross-complaint, and seeks affirmative relief, he becomes a plaintiff and the plaintiff in the original action becomes the defendant in the cross-complaint.” ’ ”

In Luse v. Peters, 219 Cal. 625, 630, 28 P.2d 357, 359, it is said:  “A cross-complaint is a pleading separate and apart from the answer, and is required to be complete and sufficient in itself.   It cannot be aided by averments of the answer.”   To the same effect Bullard v. Bullard, 189 Cal. 502, 504–505, 209 P. 361;  Asamen v. Thompson, 55 Cal.App.2d 661, 674, 131 P.2d 839.   See also the following statement of this rule in 41 Am.Jur. 473:  “A cross complaint or cross petition is in the nature of an original complaint or petition and must contain allegations that would be essential to an original complaint or petition purporting to set up the cause of action stated in the cross complaint or cross petition, and unless it avers all facts essential to a statement of a cause of action, it is subject to demurrer.”

The cross-complainant should for the same reasons be stated in a manner permissible for the plaintiff in an original complaint.   There is the more reason to maintain this requirement as, according to section 442, Code Civil Procedure, a cross-complaint need not be directed against the original plaintiff, but may as well affect any other party to the action, which other parties have not influenced the name under which defendant was originally sued.

Respondents contend that it would be impossible to mention individual members as cross-complainants where in the original complaint the defendant is an association sued under its business name because cross-complainant and defendant must be the same.   It would seem that cross-complainant could have obviated all objections in this respect simply by adding to its business name “being the following individuals associated and doing business under said name * * * ” or other words to the same effect, compare for combination of business-name and names of the members 7 C.J.S., Associations, § 35, p. 87.

The requirement of stating the names of members is not purely technical or historical.   There is some practical advantage for the cross-defendant in knowing which individuals will be responsible for costs or restitution in case he wins.   When plaintiff sues a business association or partnership under its business name he can fix individual liabilities by serving the individuals he wishes to hold responsible with process.  Section 388, Code Civil Procedure.   He would have no such possibility if an unincorporated business association or partnership were permitted to maintain a cross-complaint without stating the names of the members individually liable.   The membership may have changed between the filing of the original complaint and the cross-complaint.   If an unincorporated association or partnership were permitted to sue or maintain a cross-complaint as an entity separate from its members even the protection of section 2468, Civil Code, last paragraph, might not be available, as that paragraph prevents the individuals doing business as partners from maintaining action on contracts made under fictitious name so long as the requirements of the fictitious name statute have not been fulfilled, but does not prohibit such action by the partnership as such, obviously because such action was held inconceivable at any rate.   That the practical problem here mentioned is not imaginary is illustrated by the fact that in the case before us where Kadota Fig Association was permitted to recover and levy execution under its business name, controversies have arisen as to which individuals would be liable for restitution pursuant to section 957, Code Civil Procedure, in case of reversal.

Finally, we must reject respondents' contention that the fact that appellants contracted with and sued Kadota Fig Association under its business name prevents them from objecting to the use of such business name as sole indication of cross-complainant.   The recognition by appellants of a legally approved use of the business name does not prevent them from opposing a use by cross-complainant not sanctioned by law.

The objections of cross-defendants in their different forms should have been sustained and the judgment with respect to Kadota's cross-complaint must be reversed.

III. Appeal as to Yosemite's Cross-complaint.

With respect to this pleading appellants contend, as they had done below, that the provision of section 8 of their agreement with Yosemite “Should the parties be unable to agree upon any matter involving the computation or allocation of the costs under this agreement, then they shall select an accountant to make such determination” is in the character of an arbitration provision and that such arbitration, or an unsuccessful attempt to secure the same, is a condition precedent to the right to maintain an action as contained in Yosemite's cross-complaint.  Clogston v. Schiff–Lang Co., Inc., 2 Cal.2d 414, 41 P.2d 555;  3 Cal.Jur. 49, et seq.

Respondent Yosemite does not contend that it made any attempt to have an accountant selected for such determination, or that this point was not sufficiently raised, but only argues that the provision quoted is not wide enough to comprehend the dispute contained in the cross-complaint, which according to Yosemite does not relate to computation or allocation of costs but to wrongful withholding of money after the contract had otherwise been fully executed.

Yosemite's argument seems without merit.   Section 8 of the agreement, which contains the quoted provision as to the selection of an accountant, first mentions accountings and settlements to be made prior to October 1st pending a final accounting and audit on December 31st.   Clearly the arbitration clause refers to possible disagreements involving costs with respect to the preceding accountings and audit.   That is exactly what actually happened and forms the basis of Yosemite's cross-complaint.   The cross-complaint as amended alleges among other things in substance that cross-defendants on March 2, 1945, rendered an account as of January 31, 1945, charging operating expenses (costs) to an amount of $425,382.14 whereas the actual cash costs which should be charged did not exceed $397,595.21 and that by such padding of the items of costs cross-defendants diminished Yosemite's share of the balance to be divided by $20,438.99.   The separate items of overcharge of operating expenses or costs are alleged in detail with the conclusion that after a credit for undercharges the total overcharge amounts to $27,304.81, seventy-five percent of which amount or $20,478.61 was due and owing to cross-complainant, whereas cross-defendants have paid only $39.62 and wilfully retain $20,438.99, which amount is still due and owing.   At the trial respondent Yosemite offered in evidence an adjusted statement of account as of January 31, 1945, containing the views of its accountant with respect to each item of costs contained in the account rendered by the accountant of Case–Swayne Company and the trial with respect to Yosemite's cross-complaint consisted mostly of evidence as to the merits of the respective systems of calculation of costs by the two accountants.   Yosemite recovered the amount of $20,438.99 it claimed in accord with the position taken by its accountant.   The above shows that the amount recovered consists only of Yosemite's share of an alleged overcharge of costs, dependent on the correct manner of calculating and allocating such costs, which technical subject the parties had wisely agreed to leave to the decision of an accountant.   Neither cross-complainant nor the court had the right to deviate from this agreement without appellants' consent.   It is true that the cross-complaint contains several other allegations and also prays for an accounting, but no accounting was ordered and the redundant matter alleged can in no way have influenced the decision.   The record leaves no doubt that Case–Swayne Company had paid all that was owing according to the accounting rendered by its accountant and that the correctness of this accounting with respect to costs was the only matter which needed decision and was decided.   It was a “matter involving the computation or allocation of the costs under this agreement” and nothing else.

Respondent tries to distinguish Clagston v. Schiff–Lang Co., Inc., supra, and other cases cited by appellants which hold an arbitration provision to constitute a condition precedent on the ground that in the cited cases the arbitration clause related generally to any difficulties arising between the parties, whereas here the field of arbitration is restricted to matter involving costs.

Where the actual dispute relates to the restricted field for which the arbitration agreement is made, the distinction is without meaning.   In Davisson v. East Whittier Land etc. Co., 153 Cal. 81, 96 P. 88, 89, an arbitration provision restricted to “the true value of the extra work done” was held to constitute a condition precedent for court action relating to that subject.

Yosemite also argues that the following language in the answer to the cross-complaint estops cross-defendant from asserting that the arbitration provision was not complied with:  “pursuant to paragraph 8 and to carry out its terms and provisions the cross-defendant Case–Swayne Company, with full knowledge and consent of cross-complainant, procured the services for the said parties hereto of Wayne E. Mayhew & Company, certified public accountants, to audit the accounts of the parties as provided in said contract to enable cross-defendants to render the accountings and make the settlements therein provided for * * * that thereafter, and on or about March 2, 1945, said Wayne E. Mayhew & Company completed its final accounting.  * * * ” The quoted language clearly relates only to the first sentence of section 8 with respect to the necessity of settling of accounts and audit, not to determination of disagreements the existence of which is not mentioned, and which only became apparent after the final accounting by Wayne E. Mayhew & Company was completed.   But even if Case–Swayne Company had taken the position that the report of Wayne Mayhew & Company was the determination of disagreements by the accountant of the parties the expression of such view would not free Yosemite, which denies the existence of a binding determination, from the duty to attempt to secure the same and to allege the arbitration or the frustration of it by cross-defendants.   Case–Swayne Company's refusal to let the accountant personally inspect their books cannot be considered to have frustrated arbitration.   If Yosemite was not prevented from beginning court action it certainly would have been able to demand the appointment of an accountant to decide the disagreements.   The decision of the court given without prior attempted or completed decision by an accountant can not stand.

IV. Restitution.

In case of reversal of the judgment respecting the cross-actions appellants pray for an order requiring restitution with interest of the amount collected from them by writ of execution on December 18, 1947, to wit, $80,550.55 in behalf of Kadota and $24,333.33 in behalf of Yosemite.   Appellants contend that with respect to the restitution of the amount collected by Kadota all defendants are individually liable.

As a rule a party whose money has been taken under a judgment which is thereafter reversed is entitled to restitution of the amount taken with interest.  Section 957, Code Civil Procedure;  Restatement of Restitution, sec. 74;  Ward v. Sherman, 155 Cal. 287, 291, 100 P. 864;  Levy v. Drew, 4 Cal.2d 456, 459, 50 P.2d 435, 101 A.L.R. 1144.   However, as no final decision on the merits is given and it is conceded that at any rate certain amounts are due plaintiffs in the cross-actions we think it preferable, rules of equity being applicable, that the amounts be paid into court to abide final disposition and it will be so ordered.   It is true that individual members of an unincorporated association organized for profit are individually liable for the obligations of the association contracted during their membership.   Burks v. Weast, 67 Cal.App. 745, 751, 228 P. 541;  Webster v. San Joaquin Fruit etc. Ass'n, 32 Cal.App. 264, 162 P. 654, 7 C.J.S., Associations, § 32, pp. 76–77;  Wrightington, Unincorporated Associations, etc. secs. 12, 20, 24.   But the liability for restitution was only caused by the execution on December 18, 1947, and only those who were members of Kadota at that time are individually liable.   In case of dispute their identity will have to be established by the court below.

Other points of controversy argued by the parties do not require decision under the view we have taken.

The judgment with respect to the original action of plaintiffs should be affirmed;  with respect to the cross-actions it should be reversed and the cause remanded for further proceedings;  moreover, it is ordered that for the purpose of making restitution Kadota Fig Association of Producers and its individual members as of December 18, 1947, pay into court to the county clerk and clerk of the superior court of the State of California in and for the City and County of San Francisco the sum of $80,550.55 and Yosemite Growers Co-op Association in the same manner the sum of $24,333.33, both to be paid within 10 days after issuance of the remittitur in this case with interest from December 18, 1947, and to abide final disposition of the cause.   The appeal from the judgment of dismissal in favor of the defendant B.H. Dibblee, since deceased, has heretofore been dismissed on stipulation of the parties.

The judgment is affirmed and reversed in accordance with the foregoing directions.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.