## Facts

- A growers’ association contracted in writing to sell a minimum quantity of specified varieties of peaches “growing and to be grown” on identified “sundry orchards in Ontario and Cucamonga.”
- The buyer’s agents inspected the orchards before contracting; the agreement contemplated fruit from those specific orchards, not substitute peaches from other sources.
- After contracting, an extraordinary, unexpected drought reduced production on the referenced orchards below the stated minimum quantity, without fault by the seller.
- The seller delivered all peaches of the required varieties that were actually produced on those orchards.
- The buyer accepted and retained the delivered peaches, knowing of the drought and the resulting shortfall, but refused to pay the full value and asserted damages for failure to deliver the minimum quantity.
- At trial, the court admitted parol evidence to identify which orchards the phrase “sundry orchards in Ontario and Cucamonga” referred to and to show the parties’ understanding that the minimum quantity depended on what those orchards produced.
- Judgment was entered for the seller for the value of peaches delivered and retained; the buyer appealed.

## Issues

1. When a contract is for a minimum quantity of crops “growing and to be grown” on identified orchards, does an extraordinary drought excusing production relieve the seller from liability for the undelivered balance?
2. If the contract is “entire” as to quantity, may the seller still recover the value of goods actually delivered and accepted by the buyer?
3. Is parol evidence admissible to identify the orchards referenced by an ambiguous written description and, if admitted, can it be harmless where it merely confirms an implied condition?

## Decision

- The judgment for the seller was affirmed.
- The seller was excused from delivering the minimum quantity to the extent an unexpected drought (vis major) made full performance impossible without the seller’s fault.
- The buyer could not require the seller to substitute peaches from other orchards or sources not contemplated by the contract.
- Because the buyer accepted and retained part of the peaches delivered, it waived the condition precedent of complete delivery under the entire contract and owed payment for the portion received.
- Parol evidence was properly admitted to identify the orchards; any additional parol evidence concerning quantity was not prejudicial because it proved what the court treated as an implied condition.

## Legal Principles

- A contract for crops “growing and to be grown” on identified land carries an implied condition that performance depends on the crop’s existence and yield; extraordinary natural causes making performance impossible excuse the shortfall absent the seller’s fault.
- When a buyer accepts and retains part performance under an entire contract for a stated quantity, the buyer waives the condition of complete delivery and becomes liable for the value of the goods accepted.
- Parol evidence is admissible to clarify an ambiguous or incomplete description identifying the subject matter of a written contract; admission of oral proof consistent with an implied condition is not prejudicial error.

## Conclusion

The court held that a drought-caused crop failure excused non-delivery beyond the orchards’ actual yield under a contract tied to specified orchards, and that the buyer’s acceptance and retention of partial delivery required payment for what it received while foreclosing damages for the excused shortfall.


Ontario Deciduous Fruit Growers’ Ass’n v. Cutting Fruit Packing Co., 134 Cal. 21, 66 P. 28 (Cal. 1901)