Emirzian

On April 9, 1913, Pettit & Wilson, a copartnership, contracted in writing to sell and deliver to Griffin & Shelley Company the crops of peaches to be grown during the seasons of 1913 to 1917, inclusive, upon certain lands owned by the partnership. In 1916, Pettit & Wilson entered into an executory agreement for the sale of the land to the defendant, pursuant to which defendant has ever since been in possession of and farming the land.

This action grows out of that transaction, and it is alleged in the complaint that the Griffin & Shelley Company assigned the above-mentioned contract to the plaintiff. The defendant delivered the fruit from the land to the plaintiff for the season of 1916, but failed and refused to deliver it • during 1917. The action is for damages for this failure to deliver the crop in that year. The defendant had judgment for his costs.

The plaintiff was granted a new trial' upon the sole ground that the court had failed to find upon the issue of the assignment of the fruit contract above mentioned, from Griffin & Shelley Company to the plaintiff. Both parties appeal from the judgment. Defendant desires the order granting a new trial reviewed upon the ground…