American system is usually the only court able to administer a remedy by way of specific relief."is Here, the inadequacy of plaintiff's remedy at law, and the need of encouragement of, and a strong public policy in favor of, such co-operative marketing organizations, justify the relaxation of the letter of the old technical rules and the granting of specific performance in order to prevent the defeating of the greater equities. There can be no doubt that plaintiff's remedy at law is inadequate. Money damages. will not compensate an organization for its losses due to the default of its members. The economies of large-scale production are thereby decreased, the success of the whole enterprise is imperiled, the marketing power of the organization is impaired, and the expense on other members increased. Also, expenses incurred relying on defendant's membership will have to be borne by the other members.14

Involving, as these agreements do, the livelihood and welfare of a very large proportion of those engaged in agriculture in this state,15 a liberal and constructive public policy in favor of these associations is highly expedient. The public interest has often been a controlling circumstance in influencing courts to decree specific performance where technical rules raise doubts that otherwise might prevail.16 V. L. K.

SALES: CONSTRUCTION OF CONTRACTS TO SELL: "ESTIMATE"The ever-increasing practice of "buying up" future crops makes the case of Rosenberg Brothers & Company v. Beale and Kimball1 of practical importance. The plaintiff agreed to buy and defendant to sell the output of the latter's dryer for the following year "esti

13 See Huston, "The Enforcement of Decrees in Equity,” 6-12, 11, quoting Lord St. Leonards: "Whatever was the nature of the act to be done, whenever it was decided that it should be done, then let it be the business of the court to see its own commands carried into effect."

14 This includes such overhead expenses as the organization of the corporation, the building of warehouses, hiring of employees, advertising, and the soliciting of customers. See 8 California Law Review, 384, 387-392.

15 The following incomplete list of these associations gives some idea of the scope of the industry of this state that is operating under this system: Alfalfa Growers of California, Inc., California Almond Growers' Exchange, California Associated Olive Growers, California Associated Raisin Growers, California Bean Growers' Exchange, California Cured Fruit Association, California Fruit Growers' Exchange, California Honey Producers' Co-operative Exchange, California Peach Growers, Inc., California Pear Growers' Association, California Prune and Apricot Growers' Association, Central California Berry Growers' Association, Pacific Rice Growers' Association, Poultry Producers of Central California, Poultry Producers of Southern California.

16 Mobile Electric Co. v. City of Mobile (1918) 201 Ala. 607, 79 So. 39; Village of Larchmont v. Larchmont Park (1918) 185 App. Div. 330, 173 N. Y. Supp. 32; Oconto Electric Co. v. City (1918) 168 Wis. 91, 169 N. W. 293; Armour v. Texas Railway Co. (1919) 251 U. S. 551, 64 L. Ed. 410, 40 Sup. Ct. Rep. 56.

1 (Jan. 17, 1922) 37 Cal. App. Dec. 178. Rehearing denied March 16, 1922.

mated (by defendant) 75 to 100 tons." The rule of Brawley v. United States was adopted and applied with the result that a delivery of but three tons was held a satisfactory performance. The leading case recognized two situations and resulting rules.

1. Where the object of the sale is a certain lot of goods identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, manufactured in a certain establishment, or shipped in certain vessels, the estimate is not regarded as in the nature of a warranty. It is merely conjectural as to the probable amount, in reference to which good faith is all that is required of the party making it.3

When no such independent circumstances are referred to and the agreement is to furnish a certain quantity "more or less," only a slight variation is permitted.*

The court found the instant case to be within the first rule, holding that the estimate was conjectural and unforeseen conditions would be allowed to reduce the contemplated output.

Definiteness of time and price is, as a rule, of the essence and foremost in the minds of the parties to a contract. As a result the use of such an uncertain term as "estimate" in reference to either of them is an infrequent practice. Where time has been estimated, construction will as a matter of course largely depend upon any circumstances present, the courts evidencing a tendency, however, to require expeditious action. In contracts to sell or construct, estimates of price are often made in the sense of exact offers, bids or proposals, and if so made they are final and absolute. Where intended in a looser sense, a reasonable amount satisfies the contract, the estimate indicating an approximation. The situations above seemingly tend to fall under the second rule, allowing slight variation from the estimate.

Realty sales fall under the first rule, that is, the subject matter is independently identifiable, when exact boundaries are mentioned, despite an error in the acreage estimate. Where the property sold

2 (1877) 96 U. S. 168, 24 L. Ed. 622, following the earlier English case of Guillim v. Daniel (1835) 2 Cromp., M. C. R. 61, 150 Eng. Rep. R. 26.

3 See Williston on Sales 795, n. 5 and cases cited; also 10 Rose's Notes (Rev. Ed.) 74; Note 12 Ann. Cas. 294; Bourme v. Seymour (1855) 16 C. P. 337, 24 L. J. C. P. 202; MacLay v. Perry (1881) 44 L. T. 152; Mills, Carleton Co. v. Huberty (1911) 84 Ohio St. 81, 95 N. E. 383 (building contracts).

4 Moore v. United States (1905) 196 U. S. 157, 49 L. Ed. 434, 25 Supt. Ct. Rep. 202; U. S. v. Republic Bag and Paper Co. (1918) 250 Fed. 79, 162 C. C. A. 251; Hadley Dean Plate Glass Co. v. Highland Glass Co. (1906) 143 Fed. 242, 74 C. C. A. 462; Budge v. United Smelting etc. Co. (1900) 104 Fed. 500, 43 C. C. A. 665; Parke v. Thompson (1910) 159 Ill. App. 187; Reuter v. Sala (1879) 4 C. P. D. 239; Cross v. Eglin (1831) 2 B. & Ad. 106; Tamvaro v. Lucas (1859) 1 E. & E. 592, 28 L. J. Q. B. 301; Santa Paula Coml. Co. v. Parkhurst-Davis Co. (1912) 86 Kan. 328, 120 Pac. 347.

5 Freeman v. Hedrington (1910) 204 Mass. 238, 90 N. E. 519, 17 Ann. Cas. 741 and n; Smiley v. Barker (1897) 83 Fed. 684, 28 C. C. A. 9; Ryan v. Desmond (1905) 118 Ill. App. 190; Campbell Printing Press Co. v. Marsh (1894) 20 Colo. 22, 36 Pac. 799. Sanders v. Munson (1896) 74 Fed. 649, 651, 20 C. C. A. 581.

6 Williston on Sales, § 171.

is but generally indicated, the estimated area takes precedence, and as a basis of valuation, a deficiency will abate the price proportionately.'

Construction of intent, by means of the words used or attendant circumstances, seems to be the keynote of the leading rules. The mental state of the parties may not controvert the words employed; but in case of the least ambiguity the presumption arising from the use of any term may be overcome by proof that the contrary was intended. Consequently, previous practice, maritime usage,10 the fact that the article contracted for was but a by-product," each has been considered in showing that an estimate should not be binding. There are also numerous later manufacturing cases,1 12 upon which the court, in the present case, might have relied, rather than upon the Brawley Case, which stated the embracing principles but applied them to a peculiar situation.

7 Ketcham v. Stout (1851) 20 Ohio St. 453, 463; Bullion Beck etc Co. v. Eureka Hill etc. Co. (1909) 36 Utah 329, 103 Pac. 881; Jeffreys v. Weekly et al. (1916) 81 Ore. 140, 158 Pac. 522, Ann. Cas. 1918D 700 n., and cases therein cited. Kitzman v. Carl (1907) 133 Iowa 340, 12 Ann. Cas. 296. In cases annotated, the fact that the party was shown the property to be purchased and its limits did not relieve from the estimate. "The introduction of the words 'about' or 'estimated' or 'more or less' in a conveyance does not afford a shield against liability for false representations and the mere fact that a deficiency is very large in proportion to the supposed quantity is often treated as in itself evidence of fraud or mutual mistake." See also Weart v. Rose (1863) 16 N. J. Eq. 290. The customary inclusion of express warranties in contracts for sale of realty might influence the strength of "estimate" in such cases.

8 Allen v. Wolf River Lumber Co. (1919) 169 Wis. 253, 172 N. W. 158, 9 A. L. R. 271 n. (“about” intended to cover absolute contract for a certain amount).

Lincoln Mining Co. v. Board of Education (1918) 212 Ill. App. 586-592. 10 Borrowman v. Drayton (1876) L. R. 2 Ex. Div. 15, 47 L. J. Ex. 273; Kreuger v. Blanck (1870) L. R. 5 Ex. 179, 23 L. J. 128 (significance of "cargo").

11 Kenan, McKay & Spier v. Yorkville Cotton Oil Co. (1918) 109 S. C. 462, 96 S. E. 524.

12 "All that may be produced," Arcola Sugar Mills Co. v. Farmer Hamletts Co. (1920) Tex. Civ. App., 220 S. W. 385; estimated about 100,000 gals., 38,000 gals. delivered; Panton Lumber Co. v. Panther Coal Co. (1919) 83 W. Va. 341, 98 S. E. 563; Eustis Mining Co. v. Beer Sonheimer & Co. (1917) 239 Fed. 976; war increases major product, so buyer required to take increase of by-product; Swift & Co. v. Hafliegh & Co. (1916) 66 Pa. Sup. Ct. 504, 1 A. L. R. 1395 n.; Inman Bros. v. Dudley & Daniels Lumber Co. (1906) 146 Fed. 449, 76 C. C. A. 659.

"All that may be required." National Pub. Co. v. International Paper Co. (1920) 269 Fed. 903, estimate, 400 tons; court states that plaintiff must show his needs, he can not demand delivery for resale, though much less than 400 tons; Ruth Hastings Glass Tube Co. v. Slattery (1920) 266 Pa. 288, 109 Atl. 695; Maryland Dredging etc. Co. v. Coplay Cement Mfg. Co. (1920) 265 Fed. 842; Marx v. American Malting Co. (1909) 169 Fed. 582, 95 C. C. A. 80; F. B. Holmes & Co. v. Detroit (1909) 158 Mich. 137, 122 N. W. 506; also see supra, n. 10. Contra: Waddell v. Phillips (1919) 133 Md. 497, 105 Atl. 771; "about 700,000 cans," delivers 839,500, which does not satisfy requirement; held, not a breach.

Misc. Patrick v. Watson (1909) 55 Wash. 76, 104 Pac. 144; horses on a certain range, estimated 150-175, 85 delivered.

The requirement of good faith in performance to satisfy the conjectural type of estimate does not seem to impose arduous duties, but is satisfied by continuing production or doing the acts required by the contract in a customary manner. Impossibility is not necessary to excuse the promissor; extreme burdensomeness will do this, unless a contrary intent is clearly shown.13 It is submitted that where the estimated activity or product varies greatly from the customary, a presumption should arise that a definite amount is being contracted for or that an increased activity is necessary in order to show good faith.

The court doubtlessly had before it an ample array of facts determining the intent of the parties in the principal case. By cancelling a statement, inserted in the contract by mistake, to the effect that the sale was of the crop "grown or to be grown" on the premises, the court, however, strengthened the value of the estimate by taking away an independent circumstance which would identify the amount actually produced as the subject of the sale. Furthermore, as noted in the statement of facts, the instrument was drawn up and the estimate made by the defendant; it might therefore be subject to the rule that words of an instrument shall be taken most strongly against the party employing them. The interest of the principal case to the farmer lies in the fact that he may feel free to allow the buyer of his crop to insert estimates ad infinitum, so long as the probable crop itself appears as the real subject of sale. Care must be taken, however, that this is apparent, otherwise, if the contract should be construed to provide for a definite quantity, the failure of the particular crop, in spite of good faith, will neither excuse performance,1 nor, in the absence of obvious ambiguity, will extrinsic evidence be of avail to show the real intent.15 The full crop contracts should be acceptable to the buyer in that they shut out competitive buyers, although the estimate is not used. If a certain requirement is to be satisfied and this is acceptable to the seller, the setting of maximum or minimum figures will qualify the amount to whatever extent is desired.16 M. D. L. F.

13 See supra, n. 11: Contract for by-product, manufacturer was unable to keep up major product.

14 Williston on Contracts (1920 ed.) pp. 3310, 3314. Angikos v. Lowry (1919) 54 Utah 129, 179 Pac. 988.

15 Peterson v. Chaix (1907) 5 Cal. App. 535, 90 Pac. 951, 122 Am. St. Rep. 556.

16 Diamond Alkali Co. v. Aetna Explosives Co. (1919) 264 Pa. 304, 107 Atl. 711, 7 A. L. R. 495; Staver Carriage Co. v. Park Steel Co. (1900) 104 Fed. 200, 43 C. C. A. 471. Also if no mention of output, a contract for 200-600 tons would give the buyer the right to set any amount between these figures. Wheeler v. New Brunswick etc. R. Co. (1885) 115 U. S. 29, 37, 29 L. Ed. 341; 5 Sup. Ct. Rep. 1061, 1160.

Recent Decisions

ADMIRALTY: JURISDICTION: WORKMEN'S COMPENSATION ACTS—A stevedore engaged in piling upon a dock cargo which was being unloaded from a vessel, sustained injuries from a fall which resulted in his death. Held: that recovery could be had under the state workmen's compensation act. The State Industrial Commission of the State of New York v. Nordenholt Corporation and the Traveler's Insurance Company (1922) 42 Sup. Ct. Rep. 567.

This case presents one of the situations left open to conjecture by the line of cases (see 10 California Law Review, 234, n. 3) of which the case of Grant Smith-Porter Ship Company v. Rhode (1922) 66 L. Ed. 172, 42 Sup. Ct. Rep. 157, is one of the most recent, namely, that of an employee under a maritime contract injured on shore, as distinguished from that of such an employee injured on navigable waters, in which situation recovery has uniformly been denied (Southern Pacific Co. v. Jensen (1917) 244 U. S. 205, 61 L. Ed. 1086, 37 Sup. Ct. Rep. 524, L. R. A. 1918C 451; Knickerbocker Ice Co. v. Stewart (1920) 253 U. S. 149, 64 L. Ed. 834, 40 Sup. Ct. Rep. 438, 11 A. L. R. 1145; Western Fuel Co. v. Garcia (1921) 42 Sup. Ct. Rep. 89), and that of an employee under a non-maritime contract, injured on the water, in which recovery was allowed in the Rhode case.

In the Rhode case it was pointed out that because of the nature of the contract of employment the employee remained under the jurisdiction of local law rather than that of admiralty. (See 10 California Law Review, 234.)

In the present case we have a maritime contract of employment (Hughes on Admiralty, p. 119; see also the Jensen and Knickerbocker cases cited above) where the contract of the employer is also maritime, and it might appear to follow from the reasoning in the Rhode case that the local law could not apply. The court points out that as the injury occurred on land there is no basis for admiralty jurisdiction, which in such a case demands a maritime location as a primary requisite.

It would seem, then, that these cases may be reconciled under a line of determination which may be thus summarized: All non-maritime contracts must be considered as made in contemplation of existing state law, including workmen's compensation acts, and injuries sustained under such contracts will be governed by such local law, whether occurring upon land or water. Maritime contracts, on the other hand, must be considered as contemplating the jurisdiction of admiralty in all cases of injuries occurring upon navigable water, but not in those cases where the injury occurs upon land, there being no admiralty law applicable to such injuries because of the locality test (The Plymouth (1865) 70 U. S. (3 Wall.) 20, 18 L. Ed. 125). This situation appears in the following chart: