Delafield

Appeal from a judgment of the superior court of Fresno County in favor of defendants and from •an order denying plaintiff’s motion for a new trial. The complaint demands damages for the breach of a contract to take thirty carloads of dried prunes and advance thereon seventy-five per cent of their market value, and to sell the same for a commission of two and one half per cent, and account for the proceeds received from the sale of the prunes, less advances, expenses, and commissions. It is alleged that plaintiff shipped the thirty carloads of dried prunes to defendants, and that defendants received and made the agreed advances on fifteen carloads, but refused to receive or sell or make advances on the remaining fifteen carloads, but left them uncared for, whereby they deteriorated in value, and plaintiff was compelled to employ other persons to sell the same, to his damage in the sum of fifty-five hundred dollars.

In their supplemental and amended answer defendants •deny making any agreement “that they would take and receive, or take or receive, thirty carloads of dried prunes on commission, or advance to the plaintiff seventy-five per cent of the market value thereof, or care…