Cincotta

The plaintiff was awarded a judgment by the trial court in the sum of $1,015.45, and the defendant appealed under section. 953a of the Code of Civil Procedure. The plaintiff’s complaint is in form a common count for money had and received. The defend ant filed an answer in which he denied the material allegations of the plaintiff’s complaint and in addition thereto he presented a cross-complaint. In view of the conclusions which we have reached regarding the cause of action pleaded by the plaintiff, it will not be necessary for us to consider the questions presented regarding the cross-complaint.

The uncontra,dieted testimony shows that on or a short time before the eighteenth day of October, 1920, the defendant had sold, of the 1920 crop, to Mr. Guccione, a carload of ripe olives which was thereafter to be cured by salting, etc., and then delivered on board of the ears at Fresno. When the plaintiff heard of that sale he went to the defendant and purchased a carload to be cured and shipped, and agreed to pay twelve cents a pound. A carload of olives amounts to twelve tons or thereabouts. The purchase so made by the plaintiff was oral and no time for the delivery was specified.…