Strain

This is an appeal from a judgment rendered against the defendant. The parties entered into two written contracts for the sale to plaintiff by defendant of Muscat grapes. At the time of the execution of each contract plaintiff paid defendant two hundred dollars as part of the purchase price. Upon the trial these facts were shown. No evidence was offered for the defense. The action is for money had and received and the findings are of the facts customarily found in such actions where judgment is for the plaintiff.

Appellant contends, as he did upon the trial, that the evidence does not sustain the findings and that the facts proved fail to make a prima facie case against him. The contracts are identical in form. Those portions of them which are relevant here are as follows:

“This Agreement, Made and entered into this 8th day of July, 1920, by and between National Fruit Exchange of Los Angeles, Cal., the party of the first part, and Hungarian Grape and Fruit Co., party of the second part— “Witnesseth: That the said party of the first part agrees to sell and deliver to the said party of the second part One carload of Muscat Grapes, to be delivered by the party of the first part to…