Carpenter

Appeal from a judgment entered in favor of plaintiff, and from an order denying defendant’s motion for a new trial. On the 19th of August, 1909, the following contract was entered into between plaintiff and defendant:

At the time this contract was executed plaintiff was the owner of an olive orchard upon which the fruit which was made the subject of the contract was then growing. At that time the olives had about matured, but were not in the state of ripeness desired by the vendee. Shipment of the crop commenced in the latter part of October and continued from time to time until the 17th of February. Certain payments were made on account of the purchase price agreed to be paid by the vendee, but at the time shipment of the crop was concluded defendant contended that only a balance of $290.35 was due, while the plaintiff insisted that the amount was $1,666.17. This dispute arose on account of the fact that a portion of the olives before delivery to the transportation company had become damaged by frost and other action of the elements. It was the contention of the defendant that his contract should be so construed as to require the plaintiff to accept for all olives delivered…