Herspring

The plaintiff commenced an action against the defendant to recover moneys alleged to be due and owing to him; the defendant answered and filed a cross-complaint which the plaintiff answered, and the judgment of the trial court was rendered in favor of the defendant and against the plaintiff on the issues made by the plaintiff’s complaint, and in favor of the defendant and against the plaintiff on the issues made by the cross-complaint. From that judgment the plaintiff has appealed, bringing up the judgment-roll and a bill of exceptions.'

On the seventeenth day of February, 1917, a contract in writing was made, which is as follows:

The parties entered upon the performance of the contract, and, during the same month in which the same was made the plaintiff, being out in the field engaged in negotiating contracts, called up the defendant on the telephone and said: “Mr. Harvey, I can get a lot of peaches up here on seven and ten year contracts; you only want me to buy now for one year. I can get these contracts.” And as the plaintiff testified, Mr. Harvey replied: “All right, Herspring, go ahead and take them.” Thereafter, during 1917, the plaintiff proceeded to negotiate contracts…