Judgment Amended on Rehearing December 4, 1950. See 71 Ariz. 161, 224 P.2d 650.
Judgment affirmed as modified.
Brice I. Bishop, of Phoenix, for appellant.
Darrell R. Parker, of Phoenix, for appellees.
Stanford, Justice. La Prade, C. J., and Udall, Phelps and De Concini, JJ., concur.
[71 Ariz. 6] Action was brought by the appellees in the court below for an alleged breach of a contract which had been entered into between the appellant and the appellees for the growing and marketing of a lettuce crop. Appellant thereupon filed a counter-claim for an amount allegedly due him as a result of his having advanced the appellees a sum of money prior to the determination of the profits to be realized from said venture. Before rendering judgment against the appellant, the court below made the following Findings of Fact, the cause having been tried without a jury:
"1. That plaintiffs are husband and wife, and residents of the County of Maricopa, State of Arizona, and owners of certain agricultural lands within said county and state; that at all times mentioned in the plaintiffs' complaint, the defendant was a resident of and engaged in business in said county and state as a produce shipper under the name and style of Paramount Produce Distributors.
"2. That on August 30, 1945, the plaintiff, A. T. Millett, and defendant, George Ghiz, made and entered into a written contract by the terms of which they agreed to engage jointly in the growing of a lettuce crop upon lands belonging to the plaintiff, which said lettuce was to be harvested, packed, sold, and shipped by defendant Ghiz; that the net proceeds of the venture were to be shared equally between the parties; that the said contract further provided as follows: '13. It is further agreed that all sales will be made f.o.b. shipping point at the best prices reasonably available in the open market unless otherwise mutually agreed.'
"3. That from and including April 15, 1946, through April 19, 1946, defendant shipped 3,286 packed crates of lettuce to eastern markets without having a sale therefor. That this operation is known as 'rolling' the lettuce which is the exact opposite of f.o.b. sale.
"4. That at the time of cutting, packing and shipping the lettuce mentioned in the preceding paragraph, defendant knew that the lettuce market had collapsed and there was no ready f.o.b. sale for it.
"5. That the net proceeds realized from lettuce 'rolled' was $ 955.31.
"6. That in the accounting made by the defendant there was charged against the expense of the joint operation $ 1.95 per crate ...