The record-union., 1895-07-20
FISK TO Be PAID FOR His PEARS.
A Suit That Hinged on the Great
Strike of 1894.
The National Fruit Association Mus
Pay for Pears Bought, Regard
less of the Strike.

Superior Judge Johnson yesterday
rendered a judgment in favor of the
plaintiff in the suit of c. A. Fisk against
the National Fruit Association, an action
to recover S295 for the alleged violation of
a contract to purchase quantity of fruit.
On May Is, 1894, Fisk, in consideration
of Sl00, sold to the Fruit Association all
of his Bartlett pears up to and including
July 10Th. at 80 cents per packed box.
He also agreed to pick and deliver the
pears free of charge at the freight sheds
in this city, the material to be furnished
and the packing to be done in the orch
ard by the association. He also further
agreed to ship the balance OF his clop
through the association on commission,
paying them the usual charges and re-
serving the right to discontinue if ship
ment were not satisfactory. In his de-
cision Judge Johnson said;
Pursuant to the agreement, Fisk, on
July II, 1894, had 500 boxes of pears
picked and ready for packing at his orch
ard. He alleged in his complaint that on
that day he notified the association of
that fact, aud that il refused to pack or
other receive the same. he claims
he was damaged IN the sum of S299
thereby.
1.-The association claimed that the fruit
was bought by il to be shipped to points
east of Sacramento; that about the lst OF
July and up to and including the llth,
the Southern Pacific Company's lines of
road over which the association was COM
PEELED to ship its fruit could not be oper-
ated by reason of what IS commonly
termed the strike'-thatiis,t the lawless in
terference by large bodies of men who
would not permit the trains to be moved,
and that such being the case. the fruit
was worthless in its hands.
1T will be observed that the instru
ment quoted contains two contracts-a
contract to sell all of plaintiffs market
able pears up to July 10Th at eighty cents
box, and after that day to ship all of his
fruit through defendants house on COM
mission. Each contract il entirely de-
pendent upon itself. and has no place with
the other. 1t is only with the former con-
tract have to deal.
Il can construe this contract in no other
way than contract TO sell. Plaintiff
agrees TO sell all his marketable pears, and
defendant agrees 10 purchase them at
certain price per box. The contract is an
absolute one, without any contingency or
condition whatever attached.
''It seems to be strange prin ciple that
will permit person to avoid his contract
event. On the 2Sth OF May it was appar-
ent that plaintiffs pears would, on the
11th day OF July, be worth 50 cents box.
Defendant was willing to purchase for
that price; and exchange was to the mu-
tual advantage Of both parties and agreed
to. Upon the day named the pears were
in the condition that was expected. No
objection on that score. but because
plaintiff could not send them to market
for reasons he could not control they be-
came valueless. They were valueless to
both parties. Who shall suffer the loss
Shall plaintiff? He performed every
condition of the contract required Of him
to be done. Is he 10 blame? | cannot
see in what he is to be censured. The de-
fendant agreed TO take them, and should
it not be compelled TO do so?
The defendant claimed that it was the
act of God that prevented it from COM
plying with its contract, and therefore it
should be relieved. The act of God will
excuse the not doing OF a thing where the
| law had created the duty, but never
where it is created by the positive and
absolute contract OF the party.
1.-The reason of this is obvious. The
law never creates upon anyone a duty to
| perform that which God forbids, or
which He renders impossible of per-
formance, but it allows people to enter
into contracts az they please, provided
they do not violate the law.
But l do not see how the facts claimed
as defense in this case can be invoked.
There was nothing done that would have
prevented the defendant from receiving
the fruit IL agreed to purchase. The strike
did not prevent that. The strike pre-
vented it from dlspOsing Of the fruit after
it received it; that was all. But that was
a matter that was of no concern to plaint-
if. He was in no way interested in the
disposition of the fruit after delivering.
From this view l do not think the
cases cited by defendant applicable. They
one and all mbrace the question of the
liabilities OF common carriers, and hold
that in certain cases carrier is not liable
| for negligence when prevented by un-
controllable contingencies, and. as will
be seen by some of the cases cited, there
is a conflict even in such case
But such is not the case here. The
| question of a carrier is not involved
| The defendant failed to provide in it's
contract for such an emergency as did
| happen. There is nothing in its conten-
| ton that the depot was closed and
plaintiff could not have delivered the
fruit as he agreed. The fruit was to be
| first packed in the orchard by defendant,
az we'll as packing materials furnished
| by it, but we find that the defendant re-
fused to do either of these acts, and noti-
! fed plaintiff that it could not receive the
fruit. After that for plaintiff TO have
done otherwise than he did would have
| been q vain thing.
plaintiffs S motion to strike out por-
tions of the defendants answer is granted
and judgment ordered for the plaintiff
for the amount claimed in his COM
plant"
The case was an appealed one. and had
been decided in favor of Fisk by ex-City
Justice of the Peace James B. Devine.
d. e. Alexander and Isaac Joseph were
| Fisk's attorneys.
FISHED OUT THE FISHERS