Harcourt

This is an appeal by plaintiff from a judgment in favor of defendant in an action by plaintiff to recover brokerage fees. The appeal is on a settled statement of facts in lieu of transcripts under rule 7 (b) of the Rules on Appeal.

The settled statement discloses that appellant is an individual engaged in the business of food brokerage in San Francisco. Respondent is a canning company with its principal place of business in Stockton.

In May of 1946, after negotiations, the parties entered into an agreement reading:

Shortly before the end of the fiscal year covered by this first agreement, the parties entered into a written agreement covering the 1947-1948 period. This agreement reads:

During the period covered by this agreement appellant received daily pack records as well as weekly pack records, Also during this period while appellant was making sales of respondent's products, the respondent was also on divers occasions selling direct through other outlets. However, during the entire period in question respondent first offered its merchandise to appellant and only sold through other outlets when appellant failed, neglected or was unable to do so.

It was stipulated that…