Stender v. Twin City Foods, Inc.

Hamilton, J.

(concurring) — I concur with and have signed the majority opinion because I am satisfied that, under the circumstances of this case, the majority has attached the bilaterally intended meaning to the phrase “adverse weather conditions” as used in part 5, section 1 of the contract in issue.

At the expense of being redundant, I believe it is important to highlight pertinent portions of the two provisions of the contract in question which bear directly upon the issue involved, and to relate them to the course of events which occasioned this lawsuit.

*257Initially, however, it should be noted the evidence revealed, without substantial dispute, that: In 1967 in the Skagit County area, the defendant had some 12,000 acres under pea growing contracts and in 1968 some 12,200 acres under like contracts; the defendant’s normal complement of pea viners maintained in the area was 68, which number was increased from outside sources to 96 during July and August of 1968, nine of which, incidentally, came from defendant’s Lewiston, Idaho, operation; since 1948, the defendant bypassed crops in the Skagit County area in only 2 years, 1962 and the year in question, 1968; in 1968 only 600-plus of the 12,200 acres under contract were bypassed, affecting 23 growers of which plaintiff was one; and, other pea processors in the area such as Libby, McNeill & Libby, National Fruit Can Company, and Stokely bypassed crops in 1968, with only Cedargreen, having 3,600 acres under contract, not being required to bypass. It should further be observed the evidence indicated that defendant’s processing plants serving the area were not running at full capacity at the time in question, that defendant marketed all the peas processed, and that it was not economically practical for defendant to bypass crops.

I turn now to the two pertinent contractual provisions. As indicated in the majority opinion, part 3, section 12 of the contract provides:

In Twin City scheduling of time for cutting and delivery, Twin City does not guarantee selection of most desirable time for maximum return of grade or tonnage and is obligated only to schedule crops in good faith for-efficient harvesting and handling of the crop contracted hereby and by other similar contracts with other growers.

(Italics mine.)

By the terms of this paragraph it is clearly recognized, contemplated, and spelled out within four corners of the contract that the harvest schedule for plaintiff’s crop would be carried on in conjunction with and compatible to “other similar contracts with other growers.” Plaintiff’s contract *258by its terms, therefore, was not a single, isolated or unrelated contract, but rather was a part of an integrated and systematic operation for the planting, growing and harvesting of green peas for processing and marketing. The fulfillment of plaintiff’s contract, thus, was to some extent at least, dependent upon other growers’ crop schedules and the success thereof. Furthermore, there is no evidence to support a conclusion that defendant acted other than in good faith in scheduling the crops for efficient harvesting under the conditions prevailing.

Part 5,. section 1, the bypass provision of the contract, provides inter alia:

In the event of circumstances resulting from adverse weather conditions . . . that may delay harvest of the green pea crop beyond the optimum maturity for processing, Twin City has the option to divert that portion of Grower’s acreage for seed or feed purposes as the quality of the salvage may dictate.

(Italics mine.)

The operative facets of this paragraph are two; first, circumstances due to adverse weather conditions must occur, which, secondly, delay harvest of the pea crop beyond optimum maturity. The focus, therefore, of this paragraph seems to me to be not so much upon the phrase “adverse weather conditions” as upon the circumstances arising from such weather conditions which, in turn, affect the harvest. Viewed in this sense then, it would appear reasonable to conclude, as the trial judge and the author and signers of the majority opinion do, that the phrase “adverse weather conditions” as used in the pea growing contract before the court is not limited in application to such weather manifestations as rain, hail, sleet, snow, flood, or other such inclemencies, but would include any form of weather conditions productive of circumstances adverse to the timely harvest of a given pea crop, despite good faith efforts on the part of the harvesters to reach the crop.

The circumstances in this case were weather conditions which, by their nature, first retarded maturation of a sub*259stantial acreage of peas and forced into idleness vining equipment which otherwise would be engaged in harvesting per a systematic maturation schedule, and then suddenly “snapped” the peas into maturity at such a pyramiding rate as to virtually inundate the harvesters. Such weather conditions, it would seem to me, would obviously be adverse when considered in the context of a pea growing and picking operation.

Finley, Stafford, and Utter, JJ., concur with Hamilton, J.