Morrell

This is an appeal from a judgment and also from the order denying defendants’ motion for a new trial.

The defendants demurred to the complaint both generally and specially, and the first point to be considered concerns the action of the court in overruling this demurrer.

Plaintiff and defendants entered into a contract June 12, 1907, for the sale by plaintiff to defendants of a crop of prunes grown in 1907. The contract is in writing, and the facts pertinent to this discussion as set out in the complaint are as follows:

“Moulton’s Switch, Santa Clara Co., Cal.

“6/12, 1907.

“Received from the San Tomas Drying and Packing Cti. the sum of One dollar ($1.00) as part of purchase money for the following described fruit, viz.: The entire crop of dried Pr. prunes, season 1907, and estimated at 100 tons, and grown and dried on the orchard known as Morrell Ranch-Wrights, f. o. b. ears Wrights, tested at Wrights. Prunes to be on the five point, with one dollar per ton to be added to basis price for each and every point that the prunes average larger than the five point, and one dollar per ton to be deducted from basis price for each and every point that the prunes average smaller than…