Akins

The present controversy arises out of the alleged failure of defendant to supply boxes to plaintiffs for the purpose of picking and shipping tomatoes to defendant's cannery, as provided in the contracts between the parties. The court, sitting without a jury, found in favor of plaintiffs, and from the judgment entered accordingly defendant has appealed.

*869 Plaintiffs by their complaint allege that on March 25, 1944, two contracts were entered into with defendant, whereby plaintiffs agreed to sell and defendant agreed to buy all tomatoes grown on certain described lands in Yolo County; that when the tomatoes were ready for harvest plaintiffs so notified defendant and requested boxes as provided in said agreements; that although repeatedly requested so to do defendant furnished only a small portion of the boxes necessary, and that as a proximate result thereof plaintiff suffered loss and damage.

Defendant’s answer, to which were attached copies of the contracts, admitted the execution thereof and affirmatively alleged that by reason of circumstances and conditions beyond its control which were specifically set forth in said contracts as excuses for nonperformance, defendant was…

Appellant’s petition for rehearing raises the point that the affirmance of the judgment of the trial court is erroneous in that on the basis of our holding the proper measure of damages should have been the difference between *875 the amount actually received for the crop and what the plaintiff would have received had there been proration.

In our opinion filed herein we held that the plaintiffs’ damage was shown to have been due to defendant’s discrimination and failure to prorate. However, at the trial, the defendants offered no evidence to show that the extent of the plaintiffs’ damage would have been other than the amount awarded in the event there had been proration.

The question with respect to the question of damages not having been raised in the trial court, cannot be urged for the first time here on appeal, and the issue on this point does not affect the basis of our holding.

Appellant’s petition for a hearing by the Supreme Court was denied September 8, 1947. Schauer, J., voted for a hearing.

The present controversy arises out of the alleged failure of defendant to supply boxes to plaintiffs for the purpose of picking and shipping tomatoes to defendant's cannery, as provided in the contracts between the parties. The court, sitting without a jury, found in favor of plaintiffs, and from the judgment entered accordingly defendant has appealed.

Plaintiffs by their complaint allege that on March 25, 1944, two contracts were entered into with defendant, whereby plaintiffs agreed to sell and defendant agreed to buy all tomatoes grown on certain described lands in Yolo County; that when the tomatoes were ready for harvest plaintiffs so notified defendant and requested boxes as provided in said agreements; that although repeatedly requested so to do defendant furnished only a small portion of the boxes necessary, and that as a proximate result thereof plaintiff suffered loss and damage.

Defendant's answer, to which were attached copies of the contracts, admitted the execution thereof and affirmatively alleged that by reason of circumstances and conditions beyond its control which were specifically set forth in said contracts as excuses for nonperformance, defendant…