The parties made their own contract, and we perceive Provision in a marketing contract permitting a member or the association to terminate it is valid. Such provisions, insofar as the members are concerned, are usually referred to as withdrawal provisions. A provision authorizing either party to terminate a contract does not affect its binding character. It affects only the length of time the contract may run. Unless the conditions for the termination of a contract are met, however, the cancellation of the contract concerned is not effected. In other words, there is no termination unless the necessary conditions are complied with. For instance, if a withdrawal provision permits a member to withdraw by giving 30 days' notice prior to a certain day, a notice that fails to give the full 30 days is void and the attempt to withdraw fails.82 It is generally recognized that if an agreement provides the terms and conditions under which it may be canceled, this method is exclusive.83 The period for which the marketing contracts of an association may run without a right on the part of producers to terminate them may become important in the enforcement of such contracts because, if marketing contracts are terminated while a suit to enjoin the violation of them is pending, the suit will be dismissed. Moreover, if the marketing contracts may be terminated by the producers so as to virtually nullify the effect of an injunction prohibiting their breach, such relief may be denied.84 81 Yerxa, Andrews & Thurston v. Randazzo Macaroni Manufacturing Company, 315 Mo. 927, 288 S.W. 20, 33 (1926). 82 Mosher Grain v. Kansas Coop. Wheat Marketing Association, 136 Kan. 269, 15 P. 2d 421 (1932); Grays Harbor Dairymen's Association v. Engen, 130 Wash. 169, 226 P. 496 (1924); Egyptian Seed Growers' Exchange v. Hollinger, 238 Ill. App. 178 (1925); Meyer v. California Prune & Apricot Growers' Association, 42 Cal. App. 2d 632, 109 P. 2d 726 (1941). But see Taresh v. California Canning Peach Growers, 3 Cal. 2d 686, 45 P. 2d 964 (1935). 83 Meyer v. California Prune &Apricot Growers' Association, 42 Cal. App. 2d 632, 109 P. 2d 726 (1941). 84 Pure Milk Producers Association of Greater Kansas City Territory v. Bridges, 146 Kan. 15, 68 P. 2d 658 (1937). Signing Marketing Contracts Even though a contract is signed without being read by persons capable of reading it, and although the claim is made that its contents were misrepresented, it is valid and enforceable if signed under normal conditions.85 The law proceeds upon the theory that a person must use some care and caution to protect himself and that he cannot complain of situations made possible by his own carelessness. If the signer of a contract is illiterate and the contract is misrepresented to him, it may be rescinded.86 If a contract is signed with the understanding that it is not to become effective until the happening of a certain event, such as obtaining the approval of a third person, the contract fails if the approval is not obtained,87 or if the delivery of the contract was conditional and the grower was to have an opportunity of reading it before the contract became effective, it fails if this opportunity is not given.88 Close questions of fact may arise under circumstances like these. In a Virginia case, the court refused to believe testimony that the contract had been conditionally delivered and hence held it binding.89 A wife or husband is not by virtue of the marriage relationship alone the agent of the other to sign a marketing contract.90 But if either had been given or had been represented by the other as having authority to market the crops grown, a marketing contract signed by the husband or the wife, as the case might be, would be binding on the other.91 85 Pittman v. Tobacco Growers' Co-op Association, 187 N.C. 340, 121 S. E. 634 (1924); Tobacco Growers' Coop. Association v. Chilton, 190 N.C. 602, 130 S.E. 312 (1925); Barron G. Collier, Inc. v. Stebbins, 236 Mich. 147, 210 N.W. 264 (1926). 86 Dunbar v. Tobacco Growers' Coop. Association, 190 N.C. 608, 130 S.E. 505 (1925); Simpson v. Tobacco Growers' Coop. Association, 190 N.C. 603, 130 S.E. 507 (1925). 87 Tobacco Growers' Coop. Association v. Battle, 187 N.C. 260, 121 S.E. 629 (1924). 88 Georgia Cotton Growers' Coop. Association v. Smith, 163 Ga. 761, 137 S.E. 233 (1927). 89 9 Elmore v. Maryland & Virginia Milk Producers' Association, Inc., 145 Va. 42, 132 S. E. 521, 134 S.E. 472 (1926). 90 Waken v. Davis, 112 Okla. 23, 239 P. 659 (1925); Sladkin v. Ruby, 103 N.J. Law 449, 135 A. 880 (1927). 91 Dark Tobacco Growers' Co-op Association v. Garth, 218 Ky. 391, 291 S.W. 367 (1927). Contracts Obtained by Force or Fraud If solicitors, in seeking to get producers to sign contracts, make statements that are material and false relating to the affairs of the association, contracts thus obtained may be set aside by the producers in suits promptly brought for this purpose. Also, if such producers after discovery of the fraud promptly give notice to the association that they regard the contracts as invalid because of fraud and then refuse to recognize them in any way, they may defend suits brought against them by the association for failure to abide by the contracts by showing fraud in their procurement." 92 Probably, in some jurisdictions, although no notice of the fraud was given by the producers to the association, they could defend suits brought against them by the association by showing fraud in the procurement of the contracts.93 If duress, force, or intimidation is used to obtain a contract, the producer concerned may have it set aside or may defend when sued on the contract, by showing the facts under which it was obtained.94 In California, the failure to exhibit a permit issued under the blue sky laws of that State, and as required by such laws, to a prospective member was held to constitute fraud and to justify the cancellation of the marketing contract entered into with a producer.95 Although force or fraud is involved in the procurement of a contract, if the producer recognizes the contract in any way after discovery of the fraud or the cessation of the force such as by making deliveries under it, he could be bound. Likewise, if he executes a proxy, thus asserting that he is a member of the association, when membership, if it exists, is by reason of the 92 Kansas Wheat Growers' Association v. Vague, 118 Kan. 246, 234 P. 964 (1925); Kansas Wheat Growers' Association v. Massey, 123 Kan. 183, 253 P. 1093 (1927); Kansas Wheat Growers' Association v. Rowan, 123 Kan. 169, 254 P. 326 (1927); Burley Tobacco Growers' Coop. Association v. Rogers, 88 Ind. App. 469, 150 N.E. 384 (1926); Placentia Co-op Orange Growers' Association v. Henning, 118 Cal. App. 487, 5 P. 2d 444 (1931). 93 For a discussion of fraud in the procurement of stock subscriptions see "Subscriber, Stock, Capital Stock," supra. 94 Sun-Maid Raisin Growers of California v. Papazian, 74 Cal. App. 231, 240 P. 47 (1925); Commonwealth (Burley Tobacco Society) v. Reffitt, 149 Ky. 300, 148 S. W. 48, 42 L.R.A. (N.S.) 329 (1912). 95 Klombies v. Weeks Poultry Community, Inc., 121 Cal. App. 175, 8 P. 2d 940 (1932). marketing contract or as a part of it, the producer may not avoid the contract. Again, if by any other act a producer recognizes the contract as binding, although procured by force or fraud, he will be deemed to have waived the force or fraud, as the case may be, and the contract may be enforced against him. For statements made by solicitors or others in the procurement of contracts to amount to such fraud or misrepresentation as would authorize a rescission of a contract, the statements made must relate either to past or to present conditions or situations affecting the association, because prophecy made or opinion expressed as to the things that will be accomplished by the association are all matters in the realm of conjecture, and whether they will or will not come to pass is known by all concerned to be uncertain." In some jurisdictions, however, parties making statements, or expressing opinions concerning the future must honestly believe them.98 If the person to whom false statements are made to induce him to sign a contract knows that the statements are false, he cannot rescind the contract because of them.99 Oral statements or agreements made prior to the signing of a marketing contract regarding matters covered by the agreement are merged in the written contract, and, although inconsistent with the terms of the contract, they may not be used in upsetting the contract.100 When Title to Products Passes to the Association When does title to the products covered by a purchase-andsale contract pass to an association? May an association take title to the fruit, grain, wool, or other agricultural products covered by Kansas Wheat Growers' Association v. Massey, 123 Kan. 183, 253 P. 1093 (1927); Kansas Wheat Growers' Association v. Rowan, 123 Kan. 169, 254 P. 326 (1927); Dairy Cooperative Association v. Brandes Creamery, 147 Ore. 488, 30 P. 2d 338, 147 Ore. 503, 30 P. 2d 344 (1934); Beaulaurier v. Washington State Hop Producers, Inc., 8 Wash. 2d 79, 111 P. 2d 559 (1941). 97 South Carolina Cotton Growers' Co-op Association v. English, 135 S.C. 19, 133 S.E. 542 (1926); Burley Tobacco Growers' Coop. Association v. Rogers, 88 Ind. App. 469, 150 N.E. 384 (1926); Hilgendorf v. Schuman, 232 Wis. 625, 288 N. W. 184 (1939). Texas Farm Bureau Cotton Association v. Craddock, 285 S. W. 949 (Tex. Civ. App. 1926); Dunbar v. Tobacco Growers' Coop. Association, 190 N.C. 608, 130 S. E. 505 (1925). Simpson v. Tobacco Growers' Coop. Association, 190 N.C. 603, 130 S.E. 507 (1925). 100 Burley Tobacco Growers' Coop. Association v. Rogers, 88 Ind. App. 469, its marketing contract prior to the time when the producer delivers the product to the association? The parties to a contract are free to include any terms they wish with respect to the passing of title and the rights and responsibilities of each in relation to the products involved. For instance, a contract may provide that the title to products passes to the association before delivery of them, but that the risks incident to their holding, handling, and delivery are the producer's. 101 As between the parties to a marketing contract there is apparently no question that the contract may be so drawn as to pass title to the association before the producer has delivered the products.102 Many cooperative statutes expressly authorize the making of marketing contracts that pass title to the products involved prior to delivery to the association. 103 In order to have the marketing contract pass title to the products covered by it prior to the time when the products are delivered to the association, the marketing contract should read so as to make plain that is is a contract of sale rather than a contract to sell. If the marketing contract reads that the producer agrees to sell and the association agrees to buy, this language standing alone is generally construed to imply an executory contract as distinguished from an executed contract. In a North Carolina case, the court passed upon a marketing contract which read, "The association agrees to buy, and the grower agrees to sell and deliver" the tobacco in question, and held that this was a contract to sell rather than a contract of sale. 104 A question arose as to the meaning of a provision in a marketing contract requiring the grower "to sell and deliver to the 150 N.E. 384 (1926); Natchez Pecan Marketing Association v. Bramlett, 163 Miss. 596, 143 So. 429 (1932). 101 California Grape Control Board, Ltd. v. Boothe Fruit Company, 220 Cal. 279, 29 P. 2d 857 (1934); Elgee Gotton Cases, 89 U.S. 180 (1874); Filiatreau v. United States, 14 F. 2d 659 (6th Cir. 1926). But see Colorado-New Mexico Wool Marketing Association v. Manning, 96 Colo. 186, 40 P. 2d 972 (1935). 102 Sun-Maid Raisin Growers of California v. Jones, 96 Cal. App. 650, 274 P. 557, hearing denied by State Supreme Court (1929); Texas Hay Association v. Angleton State Bank, 291 S. W. 846 (Tex. Com. App. 1927), reversing 285 S. W. 941 (1926); Beardsley v. Beardsley, 138 U.S. 262 (1891); 24 R.C.L. sec. 312; California Canning Peach Growers v. Corcoran, 14 Cal. App. 2d 264, 57 P. 2d 1360 (1936). 103See, for example, Kentucky Agricultural Cooperative Associations Act, KRS 272.221. 104 Tobacco Growers' Co-op Association v. Harvey & Son Co., 189 N.C. 494, 127 S.E. 545, 47 A.L.R. 928 (1925). |