Ross

This action was brought by plaintiff to recover a balance claimed to be due to his crop of prunes for the year 1905 sold and delivered to defendant. The defendant recovered judgment, and this appeal is by plaintiff from the order denying his motion for a new trial.

It is conceded that the findings of the court and the judgment are the result of the construction given by the trial court to the written contract for the sale of the prunes which, with the erasure's and interlineations, is as follows:

“H. C. Newby, Made in Duplicate.

“Purchasing Agent. No. 70.

“Gilroy, R. D. 26, and Coyote, Cal.

“Prune Purchasing Contract.

“Gilroy, Rural 25 Cal., Sept. 7,

“This contract made and entered into the above date by and between J. G. Ross and H. C. Newby of Santa Clara-County, Cal. Witnesseth: That for and in consideration of the sum of One (1.00) dollars in hand paid, the receipt whereof is hereby acknowledged, the said Ross has sold to the said H. C. Newby, and said H. C. Newby has bought of the said Ross all of the French prunes now on the trees or being picked and dried from the Ross Orchard on the Soap Lake Road at Prunedale, estimated at about 35 tons more or less when dried,…