Baer

Plaintiff brought this action to recover the sum of $3,511.15 alleged to be owing to it by defendant under an agreement entered into between them. This agreement is set forth in the complaint. Defendant answered the complaint, denying any indebtedness to plaintiff and filed a cross-complaint in which he sought to reform said agreement. Judgment was rendered for plaintiff for $3,250, and denying the relief prayed for by the cross-complaint for said reformation. Defendant filed a. motion for a new trial, which the court failed to pass upon within sixty days after its filing, and therefore said motion is deemed denied. From this judgment defendant appeals.

The only question presented on this appeal is whether or not the trial court erred in its refusal to reform the said agreement.

The facts in substance are as follows: Respondent owned a stock of merchandise located at Oakdale, California, which it was desirous of liquidating. The appellant’s place of business was located in San Francisco, and his business consisted of buying out stocks of merchandise of stores and liquidating same, and he had been engaged in that business for the past thirty years. Some time in the latter part of…