Rusconi

This is an appeal from a judgment in an action upon a fruit marketing contract to recover money alleged to have been wrongfully withheld by the respondent.

The respondent is a produce marketing corporation. June 1, 1917, the parties to this action executed a written contract by the terms of which the respondent agreed to promptly sell and market, as appellant’s agent, all his deciduous fruit which was to be delivered during a series of years, for a consideration expressed as follows: “for which [service] the Exchange shall deduct from the growers’ account sales 7% of the gross receipts in full compensation for such services. . . . Growers are entitled to any dividend in accordance with the last paragraph of Article XIX of the by-laws, . . . having carried out the provisions contained in the paragraph of Article XIX. . . . This agreement covers 65% of the shipping grapes of party of the first part.”

Article XIX of the by-laws, which is referred to in the foregoing contract, is set out at length in the complaint. The answer denies that said article, as alleged in the complaint, was in force at the time of the execution of the contract, and, upon the contrary, asserts that the…