Fresno Home Packing Co. v. Lyon

delivered the opinion of the court.

Appellant’s place of business is Fresno, California, and appellee’s place of business is Meridian, Mississippi. Appellee, by written contract, dated 13th day of May, 1909, purchased of appellant a, car load of dried fruits, to be delivered in October. This contract, among other things, contained the following stipulation: “Sold to A. J. Lyon & Company, buyer. Buyer’s address, Meridian, Mississippi; routing (delivery line), Sou. P. c|o N. 0. & N. E., New Orleans, Louisiana; as early in October as (possible). . . . First car of layer shipment for Meridian by F. H. P. Co. for 1909.” After the contract was executed appellee requested that the car be shipped over the Atchison, Topeka & Santa Fe Eailroad, instead of the Southern Pacific. On October the 8th the car was *231shipped over this route to appellee, hut was delayed in transit and did not arrive in Meridian until about a month thereafter. Prior to the arrival of the car at Meridian, other wholesale merchants had received similar shipments of dried fruits from appellant, by reason whereof appellee claims that he 'was unable to dispose of his car of fruit, thereby sustaining loss. Appellee’s claim is that appellant violated that portion of its contract, hereinbefore set out, by which it ag'reed that the first shipment made by it to Meridian should be made to appellee, and that appellee’s loss was occasioned by this _ breach of the contract. To sustain this contention, appellee introduced in evidence a bill of lading issued by the Southern Pacific Railroad Company, at Fresno, California, on October 8th, the same day that appellee’s shipment was made, of a car load of dried fruits to Russell & Butler, of Meridian, Mississippi, and also evidence showing that this car arrived at Meridian some time prior to the arrival of the car shipped to appellee. No evidence was introduced by appellee tending to show which of these two cars was shipped first. The evidence introduced by appellant showed, without contradiction, that the first car of fruit shipped to Meridian was the car shipped to appellee, and that therefore it complied literally with its contract.

It was incumbent upon appellee to show that the car of fruit shipped to him by appellant was not in fact the first car of fruit shipped by appellant to Meridian. When appellee by his evidence failed to do this, he thereby failed to establish a breach of the contract, and, consequently, appellant was entitled to a peremptory instruction; and for much greater reason appellant was entitled to this instruction after proving that the first ■car shipped to Meridian was shipped to appellee. Prior to the execution of the written contract sued on, appellee had verbally ordered this fruit from an agent of appellant, which order was given subject to confirmation *232by appellant. Over the objection of appellant, evidence was introduced by appellee tending to show that, at the time this order was given, it was verbally agreed between appellee and appellant’s agent that this shipment should be made from seven to ten days prior to any other shipment by appellant to Meridian. This evidence, under familiar elementary rules, was wholly incompetent, and could not vary the effect of the written contract.

The court below having refused to grant appellant the peremptory instruction to which it was entitled, its judgment is reversed, and the cause remanded.

Reversed.