Peterson

The plaintiffs commenced an action to recover on two alleged contracts of sale of certain carloads of grapes. The defendants answered and a trial was had before the trial court sitting without a jury. The court made findings in favor of the plaintiffs, and from a judgment entered thereon the defendants have appealed.

In form the first count of the plaintiffs’ complaint was a common count for goods, etc., sold and delivered for the reasonable value. The defendants answered that count by interposing certain denials, but did not plead any affirmative defenses. On the day the cause was called for trial the plaintiffs were allowed to amend by pleading the agreed value instead of the reasonable value. The defendants assign the order authorizing the amendment as error. The point cannot be sustained. (21 Cal. Jur., p. 195, secs. 135-137.)

On or about the 1st of July, 1926, the plaintiffs turned over to the defendants four cars of grapes. The defendants paid the plaintiffs $500 per car, or a total of $2,000. On the ninth day of August the defendants transmitted to the plaintiffs documents in the form of an account of sales as on consignment and at the same time forwarded two…