Wellman

This is the third of a series of three cases that were tried jointly in the court below without a jury and are before us on appeal. The other two cases are Hugo V. Loewi, Inc., v. Geschwill, 9 Cir., 186 F.2d 849 and Hugo V. Loewi Inc., v. Smith, 9 Cir., 186 F.2d 858 . The parties involved in this action are John I. Haas, Inc., defendant-appellant, who was the hop buyer and O. L. Wellman, plaintiff-appellee who was the hop grower.

The contract in the instant case was negotiated in 1944 for hops to be grown and delivered in the year 1947. If covered, and was a commitment for, one-half of the salable crop of appellee’s cluster and fuggle hops, the other half having been sold to another buyer. As in the other two cases the dispute relates only to the cluster hops and not to the fuggles. The contract between the parties is in many respects similar to that in the other two cases. The differences which are material to the issues before us will be noted in the course of our opinion.

Appellee’s hop yard, like most of the hop yards in the Willamette Valley, Oregon, suffered an attack of mildew some time during the growing season of 1947. Noakes, manager of A. J. Ray & Son (appellant’s…