Perkins

Plaintiff sued on an alleged guaranty of a minimum return on fruit delivered to the defendant and sold for plaintiff’s account. The cause was tried with a jury and plaintiff had judgment. The defendant moved for an instructed verdict and, this motion having been denied, thereafter moved for judgment notwithstanding the verdict. This motion was denied and defendant appeals upon typewritten transcripts.

The plaintiff was the owner of a pear orchard; the defendant for twenty years past had been engaged in the business of receiving fruit on consignment and selling the same for the account of growers. The principal place of business and office of the defendant was located at San Francisco. Special agents were employed at various points in the state, one of whom was located at San Jose. During the year 1929 this special agent procured a contract from the plaintiff whereby the defendant handled his pears upon consignment, taking a seven per cent commission for the service. During the year 1930 the plaintiff approached the special agent in San Jose on several occasions, urging him to purchase on behalf of defendant his 1930 crop. The agent declined to do so, telling him that if he…