Enrico Farms, Inc. v. H. J. Heinz Company, Robert Palladino, Intervenor-Plaintiff-Appellant v. Contadina Foods, Inc

629 F.2d 1304 29 UCC Rep.Serv. 1156 ENRICO FARMS, INC., Plaintiff, v. H. J. HEINZ COMPANY et al., Defendants. Robert PALLADINO, Intervenor-Plaintiff-Appellant, v. CONTADINA FOODS, INC. No. 77-3760. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 10, 1980. Decided Aug. 28, 1980. Rehearing Denied Oct. 20, 1980. Patrick Sullivan (on brief), Emmanuel P. Razeto, Oakland, Cal., for plaintiff. Peter D. Byrnes, Seattle, Wash., for defendants. Appeal from the United States District Court for the Eastern District of California. Before BROWNING and KILKENNY, Circuit Judges, and EAST, * District Judge. The Memorandum disposition filed herein on June 23, 1980 is withdrawn. The attached Per Curiam Opinion, with dissent, is now filed in substitution. Palladino's petition for rehearing on the withdrawn Memorandum disposition is denied. PER CURIAM: 1 Palladino appeals the District Court's Order and Partial Summary Judgment in favor of the defendant Contadina Foods, Inc. (Appellee) on his two ancillary contract claims. Palladino was an intervenor in the antitrust case of Enrico Farms, Inc. v. H. J. Heinz Company. We affirm. Palladino sought to prove the breach by Appellee…

Palladino appeals the District Court’s Order and Partial Summary Judgment in favor of the defendant Contadina Foods, Inc. (Appellee) on his two ancillary contract claims. Palladino was an intervenor in the antitrust case of Enrico Farms, Inc. v. H. J. Heinz Company. We affirm. Palladino sought to prove the breach by Appellee of two written contracts for the sale and purchase of processing tomatoes by means of parol evidence to interpret or explain the contracts.

Palladino is a California grower, harvester and seller of processing tomatoes. Appellee buys and processes tomatoes. The first written contract between Palladino and Appellee is for the sale and purchase of tomatoes. The second written contract is for the sale of tomatoes by Edward Pippo to Appellee; and Palladino, as a harvester, is a third-party beneficiary of the Pippo contract.

The gist of Palladino’s claim is that although both contracts contain written provisions allowing the Appellee, in time of glut, to place quotas on the quantity of tomatoes it would accept, he, Pippo and Appellee’s field agent made oral modifications striking these provisions and providing instead that Appellee would purchase Palladino’s and…

dissenting:

I would allow the petition for rehearing and remand the case to the district court *1307 for a decision on whether the contracts in question were integrated as required by the decisions in Masterson v. Sine, 436 P.2d 561 at 563 , 65 Cal.Rptr. 545 at 547 (1968); In re Wm. Rakestraw Co., 450 F.2d 6 (CA9 1971), and Royal Industries v. St. Regis Paper Co., 420 F.2d 449, 452 (CA9 1969). Beyond question, these cases hold that the court must first decide the intention of the parties on integration of the two contracts under consideration. I quote from In re Wm. Rakestraw Co., supra, at p. 8, where it is said:

I find nothing in the record which would lead me to believe that the district court passed on the issue dealing with the integration of the contract or contracts.

Otherwise, we do not have a proper basis for affirming the district court’s order and partial summary judgment in favor of appellee Contadina Foods, Inc.