The Case of the Golden Apple, Part I Washington State Bar News Robert J. Henry Fifty years ago next month, our Supreme Court decided Thorndike v. Hesperian Orchards, Inc.[1] The Thorndike decision quickly became the most frequently cited appellate decision in this state. At last count, Thorndike has been cited 486 times, and it is still turning up regularly in the advance sheets and unreported appellate opinions. For 50 years, this case has reminded us that an appellate court in this state will not substitute its judgment for that of the trial court on disputed issues of fact. This holding is now well-established, but in 1959 it was a seismic event which corrected a 65-year detour in the state's jurisprudence. Almost unnoticed, by this appellate decision the Supreme Court also concluded a fascinating commercial dispute involving Washington's famous apple industry. The trial began on March 24, 1958, in the courtroom of Judge Lawrence Leahy. Judge Leahy was new to the bench, just beginning the 20 years he served as the solitary Superior Court judge in Chelan County. But he had practiced law in Wenatchee for many years, and presumably was well acquainted with the two lawyers, and perhaps their clients. The plaintiffs were David Thorndike, an apple grower who lived three miles north of Oroville near the Canadian border, in Okanogan County, together with his two sons and a son-in-law. Each owned an apple orchard, and together they did business as "D.A. Thorndike & Sons." The Thorndikes were respected growers and had their own warehouse in Oroville. The elder Thorndike was the sole witness to testify in the plaintiffs' case in chief, and the transcript of his testimony shows that even the substantial skills of Elizabeth D. Walters, the official court reporter, could not entirely disguise his rough speech. Much like the complaint his lawyer filed, Thorndike told a simple story. In July 1954, he signed a written contract with the defendant, Hesperian Orchards, Inc., a Wenatchee company. The contract provided that Thorndike and his sons would deliver their entire crop of Golden Delicious apples to the defendant. Defendant in turn promised to market the plaintiffs' apples in a pool with other growers, and to pay the plaintiffs for their apples "at the average pool price." Plaintiffs delivered 9,895 boxes of apples to defendant in the fall of 1954, and the following April defendant remitted a check for $36,810.76, which plaintiffs accepted and cashed. Only later, Thorndike testified, did they learn from other growers that they had been paid at a lower rate than the other growers in the pool. The complaint was filed in the Superior Court in Wenatchee on July 17, 1956, asking for an additional $13,592.16 plus attorney fees of $1,500. The Thorndikes' attorney was A.J. "Jack" O'Connor, who practiced with his son Jim in a Wenatchee firm called, not surprisingly, O'Connor & O'Connor. He was born in Kentucky and graduated in 1910 from the University of Michigan Law School at the age of 21. He was first admitted to practice in Kentucky and later migrated west to Washington state. O'Connor practiced in Seattle and Brewster before he eventually settled in Wenatchee. His legal career was interrupted by service in the U.S. Army during World War I. When the trial began in March 1958, Jack O'Connor had just turned 69. He was a little hard of hearing, as the transcript reveals, but he was nowhere near the end of his career. He practiced law until he was 85 and kept his bar membership active until he was 90. During his legal career, Jack O'Connor was both prominent and respected, not only in Wenatchee, but throughout the state. In 1946–47, he served a term as president of the Washington State Bar Association. The defendant Jack O'Connor sued was no mundane apple broker; it was the renowned Hesperian Orchards, one of the foremost purveyors of Golden Delicious apples in the United States. Even its name suggests the company's exalted status as a seller of the most desirable apples in North America. In Greek mythology, Hesperia was a legendary place at the western edge of the world, where a tree grew with leaves and branches of gold, and on those golden boughs grew apples of pure gold. The eleventh labor of Hercules was to find Hesperia and steal the golden apples from under the watchful eyes of the Hesperides, three fabled daughters of Atlas. The striking label which adorned each crate from the Hesperian Orchards in Wenatchee displayed this classical theme: a Greek goddess in blue on a red background, holding in her hand a single, perfect golden apple. The marketing genius behind this estimable enterprise was Myron Foster, the foremost "apple man" of his time in Wenatchee, which then and now is considered the "Apple Capital of the World." Myron Foster was as well-known as his company, and his stylized signature appeared with the goddess and the golden apple on each crate. Though advancing in years, Foster testified extensively at the trial, including a lengthy explanation of the techniques he had personally developed for the handling, wrapping, packing, and shipping of these fragile apples so that they arrived on the East Coast in perfect condition, where they were highly prized in the gift-basket trade. Leading his client through this testimony was Earl Foster, a Wenatchee lawyer who was also Myron's son. Born in Wenatchee, Earl attended Washington State College at Pullman before transferring to Harvard. He graduated in 1940, a classmate and football teammate of John F. Kennedy. Earl enrolled in law school at the University of Washington, but like so many of his generation, his education was interrupted by World War II. He served in the U.S. Army, and at war's end returned to law school, where he graduated in 1947 at the age of 30. After a short term with the Spokane County Prosecutor, he entered private practice in Wenatchee. Throughout the trial, the star of the show was the Golden Delicious apple. All the witnesses found themselves describing its unique charms and challenges. Even plaintiff David Thorndike, against his best interest, admitted when asked that Golden Delicious apples "have to be handled carefuler." This unique apple, so different in its golden yellow color from the other apple varieties of the day, was first discovered growing on a single tree in Clay County, West Virginia, in the late 1800s. After years of local celebrity, the single tree was sold to Stark Brothers, the Missouri nursery company which had already made Red Delicious the most popular apple in the country. The West Virginia apple was renamed Golden Delicious, to take advantage of the marketing dollars already spent on Red Delicious, despite the fact that Red Delicious and Golden Delicious apples are genetically unrelated. From that time, all Golden Delicious orchards planted throughout the country are direct descendants by grafting from that single mutant tree in West Virginia. At the trial, Myron Foster described his long association with these remarkable apples. He had first encountered them in Virginia, and when he returned to Wenatchee in 1925 to work for American Fruit Growers, he found that Golden Delicious apples had been harvested near Orondo as early as 1916. He soon began looking for a commercial market for the Golden Delicious apples grown near Wenatchee, but the problem, of course, was how to package and ship these delicate apples so that they did not bruise. Foster developed a number of techniques for handling the apples and, after years of experimentation, he came up with a cellulose packaging tray which held each apple separately, to avoid the bruising caused when apples are piled upon each other in a wooden crate. By 1933, the "cell pack" had been perfected. That year, with the entire country mired in the Great Depression, Wenatchee apples were selling for 50 cents a box. But Myron Foster's revolutionary techniques and inventions allowed him to ship two rail carloads of extra-fancy Golden Delicious apples from his own orchards to New York City. There they sold for the astronomical price of five dollars a box to the "discriminating trade," such as bon-voyage gift baskets for steamship cruises and decorative fruit displays for hotel lobbies. While the plaintiffs called only a single witness and then rested their case, the defendant had a different strategy. Fifteen witnesses were called to testify in the defense case over the next week, several testifying by deposition. For five days of the trial, Earl Foster assiduously developed his theme, the remarkable story of his father's promotion of the Golden Delicious apple, first as a profitable specialty of the New York fruit trade, but gradually growing to nationwide popularity. By 1956, Golden Delicious was second only to Red Delicious in Washington apple production.[2] Hesperian Orchards was purchasing apples from 75 growers. There could be no mistaking the remarkable job Myron Foster had done to make the Golden Delicious America's favorite fancy apple. However, attorney Foster still had a problematical case, notwithstanding his client's reputation. The contract said Thorndike would be paid for his apples "at the average pool price," but he had been paid a lower price than the other pooled growers. Earl needed some sort of legal argument to refute this apparent breach of the contract. Early in the case, he filed an answer containing an affirmative defense intended to supply this need. The truth, it alleged, was that the plaintiffs delivered "an inferior grade and pack of Golden Delicious apples," in violation of the parties' agreement. These sorry apples arrived in the market in a "deteriorated condition." Notwithstanding this disappointing performance by Thorndike, Hesperian Orchards did its best and "marketed and disposed of said apples with extraordinary promptness." This poor quality, according to the answer, led Hesperian Orchards to the course of action which became the cornerstone of its defense. The apples grown by Thorndike and his sons being inferior, they were segregated in a "particular sub-pool" comprising only Thorndike apples, and this sub-pool was "established as a grade of lower quality." These sub-pool apples "were necessarily sold at prices much lower than prices received for other Golden Delicious apples." It is impossible to tell from the transcript how much this defense was based on reality. Certainly a number of witnesses testified to quality problems with the Thorndike apples. But proving that they were treated as a separate sub-pool was difficult. Thorndike and his sons testified that they believed their apples had been pooled with the other growers' apples. The defense, on the other hand, had offered testimony that this sub-pool was created with the knowledge of the Thorndikes. Perhaps, as is so often the case, both parties sincerely believed in the truth of their own case, which each saw through the prism of self-interest. Whatever the reality, Earl Foster staked his client's defense on the sub-pool argument and tried to prove that an employee of Thorndike named Goodman had agreed to this sub-pool arrangement, thereby effectively modifying or amending the contract. Regrettably, Mr. Goodman could not admit or deny this allegation at the trial, because he was deceased. In addition to his father's reputation, Earl Foster had another advantage. His client was clearly the wealthier of the two litigants, and he indulged this luxury. The leisurely pace of the case, which took almost two years to reach trial, as well as his calling 15 witnesses to plaintiffs' one, show this tactic, but it is most apparent in attorney Foster's approach to discovery. Well into the case, he decided that there were important witnesses in Chicago and New York, apparently business associates of his father, whose testimony was vital to the defense case, so Foster noted a number of out-of-state depositions. O'Connor moved to limit this tactic by requiring that the depositions be taken on written questions. He pleaded the great expense to his client of live depositions; his motion noted that plaintiffs would have to pay a New York attorney as much as $350 to $500 merely to attend the depositions. It was in response to this motion that defense counsel uncharacteristically slipped out of the amiable civility which otherwise marked the case. Earl Foster argued that the plaintiffs ought to be able to afford these depositions because they claimed to have a collective net worth of $100,000. On November 11, 1957, more than a year after the suit was filed, this motion was decided. Judge Leahy had been on the bench for just a few weeks, but he decisively ruled that the defendant could take the out-of-state depositions. Earl Foster then traveled to New York and Chicago and took the depositions himself. Jack O'Connor stayed home, perhaps sensing that the testimony of far-off apple brokers would have little impact at the trial. No one attended the out-of-state depositions on behalf of the plaintiffs. This deposition testimony was undoubtedly boring at the trial, because each deposition was read verbatim, question and answer, into the record. But the testimony itself appears to reveal a flaw in the Foster defense strategy. A New York fruit broker named Philip Abromowitz, for example, testified by deposition for Hesperian Orchards. He said he was very familiar with the Thorndike apples, which were of very poor quality. However, all apples sold by Hesperian Orchards were shipped in Hesperian boxes, and each apple was individually wrapped in a Hesperian Orchards wrapper. To show that he knew which apples came from Thorndike's Orchards, Mr. Abromowitz testified that the apple boxes containing Thorndike's apples had a red marking that set them apart. He also testified that every time he brokered apples marked with that red marking, he received numerous complaints from his customers. This testimony may have been true, but Judge Leahy must have wondered why a savvy New York apple broker would more than once buy apples in boxes whose markings revealed they were likely to be of poor quality. Throughout the trial, the two lawyers, who undoubtedly knew each other well, addressed each other on the record as "Jack" and "Earl." Objections were addressed to each other, not to the judge. ("Just a minute. I am going to object to that, Earl.") Unlike today's judges, Judge Leahy did not seem concerned that the two attorneys addressed each other in the courtroom. Both attorneys maintained a high level of civility throughout the trial, marred by only a single incident of testiness. This occurred near the end of trial, when Myron Foster was under cross-examination. His son became quite protective, as lawyers sometimes do, urging the witness to read each document carefully and objecting to virtually every question. Finally, Jack O'Connor showed his exasperation: Mr. O'Connor: (interrupting) I do object to your running back and forth as though you had to protect your father, who knows more about the fruit business than you or I will ever learn. Mr. Foster: I agree with you on that. Mr. O'Connor: Well, why don't you sit down and let me cross examine him instead of interrupting every question as though he might say something that was wrong? Mr. Foster: I move the remarks be stricken, Your Honor. They have no bearing on the issue. This colloquy drove Judge Leahy to his only display of impatience with counsel: The Court: I think counsel can proceed, and both counsel should refrain from conversations on the floor. The testimony finally reached an end on April 1. Judge Leahy gave the lawyers 15 minutes to collect their thoughts and then heard closing arguments. It is unfortunate these arguments were not reported; it would be interesting to hear each attorney's summation of the testimony. When the arguments concluded, Judge Leahy deferred his decision: "Well, the Court will, as both counsel might imagine, take this matter under consideration and will at a future date give a memorandum decision." Seventeen days later, the court issued a three-page memorandum opinion. So often in litigation, the attorneys carefully lay out detailed factual patterns and present complex and alternative legal theories and arguments to the court, only to have the judge decide the case on one or two simple facts. So it was here. Judge Leahy totally discounted the theory that Mr. Goodman had modified the contract on behalf of his employers: . . . the Court is not at all convinced that sufficient evidence was presented in this case to show that Mr. Goodman had or was held out as having authority from the plaintiffs to authorize him to agree to change such an important provision of the Marketing Contract (Exhibit No. 2) namely, the inclusion of all fruit in one common pool. With that finding, Earl Foster's carefully constructed defense crumbled. Judge Leahy also concluded that it was Hesperian Orchards, not the Thorndikes, which had primary responsibility for the grading and packing of the apples. The court granted judgment to the plaintiffs in the amount of $10,271.50. Despite the length of the trial and statutory authority for a reasonable attorney fee, Judge Leahy awarded the plaintiffs only $1,000 for their attorney fees. Jack O'Connor prepared the findings and conclusions and a judgment. He also submitted a cost bill for the filing fee of eight dollars, a judgment filing fee of six dollars, and a witness fee calculated at a per diem of four dollars, plus ten cents a mile from Oroville to Wenatchee. The judgment was signed by Judge Leahy on April 30, 1958, and it was recorded on "micro-film" by the county clerk the next day. Undismayed, Earl Foster promptly filed a notice of appeal and ordered a transcript of the entire trial. Three months later, Ms. Walters completed her work. The transcript was 731 pages, flawlessly typed on a manual typewriter, on 8½" by 13" onion-skin paper. The transcript was filed in Olympia, where the Supreme Court, for reasons unrelated to the quality of the typing, declined to read it. COMING UP: The Supreme Court's decision in Thorndike v. Hesperian Orchards corrects a 65-year detour in Washington law and quickly becomes the most-cited case in Washington jurisprudence. Robert J. Henry is the managing principal of Lasher Holzapfel Sperry & Ebberson PLLC in Seattle. Contact | Legal Disclaimer