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In one of the plaintiff's letters to the defendants the following language was used: “It is also much to be regretted to note the exceptional dry weather California is experiencing, especially this being your first year with the Protectors and as you say, so much depends upon the weather in your section of the country. No doubt, however, when the rains do start, you will make up for lost time, which is surely hoped for, as you know by my previous letters that this amount of stock we have with you, has put us in a rather tight financial circumstances and caused us to borrow money from the banks in order to meet our own obligations which were necessarily increased on account of the anticipated business from you. We really realize your condition on account of the weather and have enough faith in you to know that if the business is to be had, you will get it. All we want is that you play the game square and you will find us easy people to get along with."
In the same letter reference is made to a proposition by the defendants to sell a portion of their territory to a Mr. Kaar for the sum of one thousand dollars, and the plaintiff wrote: “We were very much interested, however, in noting your proposition to Mr. Kaar and would like to know just what territory you intended turning over to him for this amount and also your reason for making a proposition of this kind. We were wondering if you are getting dissatisfied with the proposition or thought that Salt Lake City was a little out of your territory."
Again, the following letter, under date of February 24, 1911, was addressed by the plaintiff to the defendants: “We hardly know how to express ourselves in replying to your telegram in which you inform us that you have not sold any protectors for two months, and in this telegram you say there is none to make this month. We, of course, realize the dry weather had something to do with the sales falling off, but when they are reduced from what they were to absolutely nothing, we cannot help but think something is wrong, and you in our position would, of course, think likewise.
“We have treated you absolutely square in all of our dealings with you and expect the same from you. If it is your intention to discontinue handling our protectors we wish you would say so at once and return what new unused stock you
have on hand by prepaid freight and remit for the balance due us as per our agreement.
“Stock that has been put to use is not returnable.”
It is not necessary to enter herein upon an analytical examination of the above letters to show that their language clearly implies the relation of principal and agent between the parties. The letters sufficiently speak for themselves in that respect.
Other letters passing between the parties were introduced in evidence. In the place of presenting herein extracts therefrom, it is sufficient to say that said letters contained language clearly indicating that both parties to the contract understood the agreement to have been intended, not as a contract for the absolute sale of the goods, but merely to vest in the defendants the authority of agents in the sale of said goods within the several states named.
Many other significant considerations revealed by the correspondence between the parties might be mentioned, all tending to support the theory that the contract was intended as, and in fact was, a contract of agency, or, at the most, a conditional sale, the protectors consigned to the defendants to be paid for only when the goods consigned to the defendants were sold by them.
In addition to the foregoing considerations, the statements rendered to the defendants by the plaintiff of protectors shipped to the former may be referred to as indicating the view the plaintiff had of the character or nature of the contract. These statements were uniformly marked "consignment,” and from this fact it is reasonably inferable that the plaintiff regarded the shipments under the contract as mere consignments and not as a delivery on the sale of the goods.
Our conclusion is, from all the facts and circumstances of the transaction involved here, as disclosed by the contract itself and other documentary proofs, that the court's findings are sufficiently supported; that, under the terms of the contract, as it is warrantably construed by the court, there could not be a completed sale until the defendants sold the goods to third parties. Until that occurred, the consignee was under no obligation to pay the listed prices therefor, and could have been compelled to surrender the goods to the consignor upon demand. (Vermont Marble Co. v. Brow, 109 Cal. 236, [50 Am. St. Rep. 37, 41 Pac. 1031].)
It is true, as the authorities declare, “the distinction between agency contracts creating bailments and contracts of sale is not always clear, ... and in some cases a contract may be construed as creating merely an agency as between the parties where, as between the parties and a third person, it might be given the effect of a sale." (6 Corpus Juris, p. 1091.) There is no question of the rights of third persons involved in the transaction with which we are presently concerned.
After all, however, where the contract is uncertain or not clear as to its purpose and effect, the question whether the transaction of which it purports to be the evidence is a sale or a bailment is to be determined from all the circumstances giving rise to it, and, on conflicting evidence, a question of fact is presented for the jury's determination. (6 Corpus Juris, p. 1087.)
But counsel for the plaintiff contend that the "terms of selling these goods were to be determined by the defendant, and that he agreed to pay a fixed price for the goods," and declare that therefore the case here comes within the rule that where the consignee or factor is to sell upon terms fixed by himself, and is bound to pay to the consignor a fixed price, the contract is one of sale. (21 Am. & Eng. Ency. of Law, p. 520.) The contract here, however, expressly provides, as will be observed from a perusal of it, that the “second party agrees that they will not sell any of said protectors at less than the established list prices attached herewith, marked Exhibit A, when selling to the consumer, nor allow any of their sub-agents to violate this agreement." Thus it is plainly manifest that the defendants were not at liberty under the contract to fix their own minimum prices in selling the goods, but were to be governed in that respect entirely by the prices fixed by the consignor-the plaintiff itself.
We have neither been shown nor found a substantial reason for declaring that the trial court's construction of the contract is erroneous, and the judgment and the order are accordingly affirmed.
Chipman, P. J., and Burnett, J., concurred.
(Civ. No. 1570. Third Appellate District.-September 28, 1916.)
COMPANY et al., Defendants; SOUTHERN PACIFIC
NEGLIGENCE-COLLISION AT RAILROAD CROSSING-OBSTRUCTIONS-FAIL
URE TO STOP AND LISTEN--CONTRIBUTORY NEGLIGENCE.-In an action for damages for personal injuries received from a collision between an automobile driven by the plaintiff and a freight train of the defendant at a grade crossing on a public highway, the plaintiff is guilty of such contributory negligence as to preclude recovery, where it is shown by his own testimony that the view of approaching trains at the place of the accident was obstructed by a dense growth of sunflowers and weeds, which was well known to the plaintiff, and that he did not, upon approaching the crossing and while within the lines of the right of way of the railroad com
pany, stop his machine, or look or listen for an approaching train. ID.--OBSTRUCTED VIEW AT CROSSINGS-DUTY OF TRAVELERS.—While it
is true that the rule requiring the traveler to stop at railroad crossings and look and listen for approaching trains is not an absolute one, yet if the view is obstructed he must place himself in a
position where he can use his faculties of observation to advantage. ID.—LACK OF NEGLIGENCE OF TRAIN OPERATIVES—RIGHT TO ASSUME
ERRONEOUS INSTRUCTION.—An instruction advising the jury that the plaintiff had the right to assume that the defendant's employees would observe the law requiring them to ring the bell and
sound the whistle when approaching the crossing is erroneous. ID-ACTION AGAINST RAILROAD COMPANY AND TRAIN OPERATIVES,
JUDGMENT EXONERATING AGENTS-ACQUITTAL OF COMPANY.-In
of the company.
The facts are stated in the opinion of the court.
Power & McFadzean, for Appellant.
Alfred Daggett, Lamberson, Burke & Lamberson, and J. A. Chase, for Respondent.
BURNETT, J.-It is conceded by respondent that appellant has made a fair statement of the facts and we may, therefore, substantially adopt the same. The action is for personal injuries to plaintiff, resulting from a collision between an automobile driven by him and a freight train of appellant. The collision occurred July 18, 1912, about 4 o'clock P. M., at a grade crossing of a public highway. The crossing is located about one mile south of Dinuba, in the county of Tulare, and the train was, at the time of the accident, in charge of defendant Keith, as engineer, and defendant Rhone, as conductor, Defendant Waller was the fireman. Appellant and its trainmen were jointly charged with negligence.
The amended complaint in substance alleges that bordering the public highway on which the accident occurred on the south, and adjoining the railroad right of way on the west, there was at the time of the accident, and for a long time prior thereto had been, an orchard belonging to one Weddle; that the defendants had negligently permitted to grow up and mature on said right of way where the same crosses the public highway a dense growth of sunflowers and weeds; that the vegetation had grown to such height that a person traveling in a vehicle in an easterly direction along the highway across the railroad right of way could not see the railroad track or a locomotive engine or a train of cars upon it for any distance when looking in a southeasterly direction, until he reached a point near and almost immediately upon the railroad track; that the train of cars which collided with plaintiff's automobile was traveling upon its track from the southeast to the northwest; that at the time of the accident, the plaintiff', who was traveling along said highway in an easterly direction, brought his machine down to a slow gait at a point about one hundred and twenty yards west of the crossing, moved slowly toward the crossing, and looked for an approaching train; that because of the presence of the fruit trees in the Weddle orchard, and the sunflowers and weeds on appellant's right of way, he did not see any engine or cars on the track until he was practically upon the track; that before he got near the track he listened, but could not hear any train approaching the crossing; that when he reached the crossing, defendant and appellant, which was operating the train by and through its codefendants,