Schlessinger

This is an appeal by the plaintiff from a judgment rendered in the lower court, after demurrer to the first count of plaintiff’s complaint sustained without leave to amend.

It appears from the facts pleaded in the first count of the complaint that Mrs. Carrie Losse, as the executrix of the last will and testament of her husband, which gave her power to sell any property of the estate without first having obtained an order of court, entered into a contract with E. N. Richmond by which she sold, and Richmond bought, the entire prune crop then growing on the real property belonging to the estate. This sale was not reported to nor confirmed by the probate court, for the reason that shortly after executing the contract, the executrix received an offer in writing from the defendant to buy the real' property, the sale and purchase price to include the growing crops on the land, together with the existing contract for the sale of the 1919 prune crop to Richmond, which agreement the defendant assumed and agreed to perform in the place and stead of the executrix. This sale was confirmed by the probate court. Richmond thereafter assigned his contract to the plaintiff, which made demand upon…