Mulcahy

The Stockton Lumber Company, respondent herein and plaintiff in the lower court, brought suit against the appellant, upon two causes of action; one being upon a promissory note for $389.50 and the second cause of action being upon an account for lumber, to wit, a lot of “grape stakes” sold to appellant, amounting to the sum of $229.36. Judgment was in favor of the plaintiff in that suit for said sums and for $75 attorney’s fees, the note providing for a reasonable attorney fee.

By way of cross-complaint the defendant, appellant here, made claim that the grape stakes so furnished were “unsound, and not good or merchantable, or fit to be used for grape stakes, in this, that it (the lumber) was dry rotted, brittle, worthless, and totally unfit for the purpose.” He further alleges that he used the stakes and that many of them broke, because of their alleged unfit condition, and caused some seven tons of the grapes in appellant’s vine yard to fall upon the ground, and thus damaged appellant in the sum of $640, the value of the grapes destroyed, and an additional $200, the value of labor expended in the erection of the grape trellis.

There was no dispute as to the amount of the claims…