Balthes

Plaintiff sued to recover $1,000 paid by her into the defendant bank in connection with a written contract between plaintiff and defendant Bogigian for the sale of a quantity of figs. Plaintiff had judgment against the bank for $862.50, and against Bogigian for $137.50. The bank alone has appealed from the judgment on a typewritten transcript under section 953a et seq. of the Code of Civil Procedure.

The contract called for the sale to the plaintiff of the entire 1925 crop of figs grown on Bogigian’s land at a stipulated price and provided that, upon the execution of the contract, the plaintiff should pay to the defendant bank the sum of $1,000, “which sum shall be 'applied to the purchase price as follows: the second party (Balthes) shall pay on each ton $50.00 less than the amount owing under this contract until the said deposit is exhausted, that is to say, the deposit shall be applied to the purchase price at the rate of $50.00 per ton.”

The first delivery of figs under the contract was quarantined as unfit, and the defendant Bogigian thereupon repudiated the contract and refused to make any further deliveries. The plaintiff then notified the bank of the breach by Bogigian…