Pincus

This was an action for $2,750 for 2,200 boxes of prunes which it is stipulated were sold and delivered by plaintiff to defendant. Judgment was ren dered for plaintiff for the full amount and this appeal is from that judgment.

Appellant’s contention is that plaintiff agreed to deliver to defendant, on board ears at Los Angeles, prunes which would be in good and merchantable condition on arrival and fit for retail sale in defendant’s stores in Texas. Respondent contends that the order was f. o. b. Los Angeles, that it so delivered the prunes in good condition and that thereupon its liability ceased. The court found for respondent.

At the opening of the trial it was stipulated as follows:

Whereupon a witness was sworn by plaintiff, and after a few preliminary questions the following colloquy ensued:

The defendant then, without objection, assumed the burden of proof and introduced its evidence, thus assenting to the statement of the court, concurred in by Mr. Gerecht. George C. Esker, manager of defendant’s Broadway store in Los Angeles, a witness for the defendant, on cross-examination testified as follows:

Appellant contends that the court erred in its decision referred to…