Cooper

This is an action for breach of contract between a principal and factor. Plaintiff recovered judgment in the trial court from which defendant appealed, whereupon plaintiff now moves for a dismissal of this appeal, or an affirmance of the judgment. The motion to dismiss being denied, we will now consider the alternative, basing our examination upon the bill of exceptions and the opening brief of appellant.

Plaintiff was the owner of a pear orchard in the county of Mendocino and had entered into a contract with defendant and appellant wherein plaintiff appointed appellant her exclusive selling agent for all fruit grown upon her lands, appellant agreeing to use its best efforts to sell the fruit at the best possible price obtainable.

At the beginning of the picking season respondent notified appellant she had received an offer of $25 per ton, orchard run, for the 1932 pear crop, payment thereof to be made daily upon delivery, together with a sufficient cash advance to enable her to repay to defendant all of her then existing indebtedness to defendant. Respondent communicated this offer to an agent of appellant with the request that she be released from her contract or that…