Stender v. Twin City Foods, Inc.

Hale, C.J.

(dissenting) — I think that the Court of Appeals decided this case correctly (5 Wn. App. 809, 490 P.2d 1311 (1971) ), and I would, therefore, affirm.

Defendant Twin City Foods drew a contract and presented it to plaintiff farmer in mimeographed form for his signature. The escapement clause under which the court denied recovery was prepared by and employed language selected by defendant. It contained the following paragraph upon which the trial court entered judgment:

In the event of circumstances resulting from adverse weather conditions, mechanical failures or other means, 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.)

In other provisions, the contract gave defendant food processor the choice of scheduling the day or days on which the crop was to be planted, a contractual power which defendant exercised. As construed by defendant processor, the contract also gave it the power — likewise exercised here as the defendant’s employees testified — to

say when the peas would be cut, when they would be vined, when they would be processed? A. [Mr. Ovenell, Twin City field man] Correct. Q. Mr. Stender, or the farmer, doesn’t have anything to say about that, is that correct? A. That is correct.

The proof without substantial conflict shows that the *260weather which the court found to be adverse according to the terms of tlie contract produced a bumper crop of fine quality peas. It was not, therefore, adverse weather which caused the loss but, to the contrary, Twin City Foods’ failure to put on sufficient crew and machinery to harvest this crop. In short, defendant failed to perform its contract and left a fine crop of high quality peas ungathered.

As drafted by the defendant food processing company and signed by plaintiff farmer, the contract put the defendant in control of the growing and harvesting of the crop, with authority to determine the planting date and to prescribe and schedule the harvesting dates. The plaintiff grower, under the contract, agreed to assume only the risk of mechanical failure or adverse weather conditions — an act of God — which might delay the harvest.

The “adverse weather” upon which defendant relies began with a rather cool mid-July gradually warming to a pleasant-to-warm period at the end of the month and through the beginning of August — hardly a weather condition that could be described as adverse in Western Washington. Such alternation between cool and warm periods during the summer months in the Skagit Valley is not only not rare but even rather common, and this was acknowledged by several witnesses. Although plaintiff Sten-der characterized this 1968 summer weather pattern as “unusual,” and the defendant’s witnesses described it as “unusually severe and a bigger swing in temperature than is normal,” and as amounting to “unusual conditions,” the contract did not speak of “unusual” weather conditions, but rather of “adverse” weather conditions which would “delay harvest.” After all, “unusual” and “unusually severe,” meaning wider swings between cool nights and hot days, could be regarded as unusually fine weather for growing peas.

It was defendant food processor that blundered; neither nature nor the plaintiff had anything to do with it. Twin City Foods controlled the order of harvesting and selected Mr. Stender’s fields for bypass. The defendant company’s *261faulty decisions occasioned largely by its failure to make adequate plans and preparations and secure sufficient machinery to accomplish harvesting left a substantial part of the grower’s peas unharvested — peas which defendant had contracted to harvest and buy. The testimony indicated that, before July 20, the processor was aware that more harvesting machines or viners would be necessary. Mr. Ovenell, Twin City Foods’ field man, testified as follows:

Q. Did you have any [viners] in Lewiston or any other place. Did you have any in Lewiston? A. Yes. Q. Do you have any there? A. Yes, right now. Q. No, at the time, available in July? A. Yes, yes, but it takes a day or two to drive them over. Q. Well, if something had been done say on July 20th about starting these viners over here they would have been here in ample time to have been used on July 27th? A. Yes.
Mr. Murphy, field manager for Twin City Foods, testified:
_A. Well, I went to Mr. Lynn on the 17th and said, “Harold, we’ve got to do something. This is bunching up beyond all capacity of our present machines” . . .

Twin City Foods did employ 28 additional viners to accomplish the harvest, bringing its total complement to 96, but that proved to be inadequate. Mr. Murphy testified that, if more machines had been brought in, the harvest could have been accomplished. He testified further that more machines were available in Lewiston, Idaho, but contradicted his employee’s estimate of time needed to bring them over. He said 5 days rather than 2 would be needed for the transit.

Twin City Foods, according to the record, knew by July 17 that more harvesting machines would be necessary. Ten days after that, by the 27th of July, Mr. Stender began complaining that his peas were ready for harvest. During that 10-day period, between July 17 and July 27, sufficient additional machines could have been brought in. On July 27, Twin City Foods, having inadequate equipment, decided to bypass plaintiff Stender’s fields and give priority to others, but the actual bypass was not accomplished until August 3rd. Twin City Foods’ Mr. Murphy testified that as late *262as August 2nd, 6 days after the bypass decision was made, the peas were still usable although not of highly desirable quality. The record thus establishes that if, at the time the bypass decision was made on July 27 when Mr. Stender’s peas were of highest quality, the additional available machines had been ordered transported from Lewiston, Idaho, even allowing for the longest estimated transit time as computed by Mr. Murphy, defendant’s field manager, the machinery would have arrived in time to harvest the Sten-der crop. But in any event, these problems were responsibilities of Twin City Foods and not those which plaintiff farmer contracted to assume. The full cost of those decisions should fall upon Twin City Foods and not partially upon the farmer.

The weather, as I have noted, produced a good crop. Rather than being adverse to the harvest, it matured a good crop faster than usual. According to the testimony of a field man for Cedargreen Foods, a competitor with growers in the same areas as Twin City Foods, “We had the best year in the history of our company at that time.” On this point, plaintiff Stender testified:

I would say it [the weather] would be very good. ... In my area we have plenty of moisture, no shortage of moisture. On warm nights it is ideal for peas to mature with a good, good yield.

and, further, that growing conditions

were ideal . . . The tonnage was very good so I would say the weather was very good for the pea growers in that particular time, basing it on the number of days required to grow this crop.

So the testimony at trial indicated that, while there might never occur “ideal” weather for growing a crop of peas, certainly the weather conditions in this particular year did not adversely affect the yield per acre or the quality of the peas harvested at all, nor did it delay harvest.

There was no evidence of the weather delaying the harvest, except possibly for testimony concerning July 16th *263when it rained, but that date was 2 weeks prior to the critical time here. Testimony was given that, because of the rain on July 16, some harvest sets stopped running on that day because of the rain. But except for the rainy day of July 16, there was no testimony that weather conditions of any sort slowed the harvest machines, prevented the machines from working the fields, slowed the harvesters, prevented the harvesters from working, or did anything whatsoever to slow the pace at which the harvesting was being accomplished. The testimony shows that the mechanical processes of harvesting proceeded apace. Except for one rainy day, that of July 16, the men and machines worked hard and well, and that there was absolutely no “delay” of the harvest of the pea crop. All that Twin City Foods had to do to fulfill its contract was to provide additional crew and harvesting machinery. It was, therefore, not the weather but the defendant’s unwillingness or inability to perform that produced the loss. The problem which Twin City Foods faced, as earlier observed, was not adverse weather but a fine crop ripening a few days earlier than usual.

The majority opinion thus places upon the farmer the risk not only of adverse weather delaying the harvest but also the risk of exceptionally fine weather which operates to hasten the ripening of his crop to a particularly fine level of quality. Such weather, as a matter of law, cannot, under the contract, I think, be deemed, either in the ordinary meaning or in any reasonable understanding of the term, to be “adverse weather.” What was unusual about the weather was that it was unusually good. In holding this unusually good weather, which contributed to a fine crop of peas, “adverse weather conditions that may delay harvest,” the court not only had to rewrite the contract, but had to construe the language in favor of the draftsman.

Although I do not believe the contract to be ambiguous, if it were it would have to be construed against the party drafting it. Safeco Ins. Co. of America v. McManemy, 72 Wn.2d 211, 432 P.2d 537 (1967); Wise v. Farden, 53 Wn.2d 162, 332 P.2d 454 (1959). There is nothing in the phrase *264“adverse weather delaying the harvest” which might mean weather conditions which hasten the ripening of the crop and produce a high yield per acre of peas of exceptionally fine quality. But if the term should so prove to be ambiguous, then it should be construed against the draftsman, Twin City Foods.

Nothing went wrong with this crop except that the harvesters had taken inadequate steps to cope with the quantities of peas ripening during the period. Twin City Foods made the decision to harvest the peas of some of its contracting farmers and not others. It had arranged for sufficient equipment to harvest some of its farmers’ acreages but not to harvest all. The problem it faced was of its own making. With insufficient supply of harvesting machines on hand to work the fields when more were available in Lew-iston, the defendant processor tried to put the blame on what it would like to describe as “adverse” weather. But in putting the loss on Mr. Stender rather than on the 'writer of the contract who had' control over the number of viners available to work the harvest, the court, I think, creates an ambiguity out of a patently unambiguous term. The ambiguity thus written into the contract by construction is then construed in favor of the draftsman who wrote it.

The packer had only to direct the planting date and manage the harvest. The packer contracted to tell the grower when to plant the seed and promised to purchase any of the crop which would meet its standards. The grower, however, assumed many risks, but among them was not the risk of an unusually fine crop and unusually good weather. Under the contract he was to do all of the work connected with preparing the soil, planting and caring for the growing crop. The farmer assumed the risks of blight and disease and of cataclysmic destruction of his crop. He took the risk of unseasonal frost or drought which might kill the crop before the harvest, and the risk of hail which might beat the crop to the ground, and the risk of flood which might wash it away. Even when the crop reached maturity as fresh, green and tender peas, under the *265contract the farmer allowed the packer to reasonably schedule the harvest although a few days one way or the' other might make a substantial difference in quality and thus in the value of the crop. And, in addition to all of these risks, the farmer bound himself to accept the risk of adverse weather which might delay the harvest, such as the rain which here stopped some harvesting machines on July 16. But nowhere, either expressly or by implication, can I find where the farmer agreed to bear the full risk of abnormally good weather conditions which accelerated the ripening and produced a fine crop or that Twin City Foods would not perform its contract to harvest an unusually fine crop of peas.

I would reverse the trial court and affirm the judgment of the Court of Appeals.

Rosellini and Hunter, JJ., concur with Hale, C.J.

Petition for rehearing denied July 17, 1973.