Downey

Action by plaintiff to recover liquidated damages from the defendant Sheridan Downey on account of alleged violation of the terms and conditions of a certain fruit-marketing agreement entered into between the plaintiff and the defendant Downey on or about the seventeenth day of April, 1923. The defendant had judgment and the plaintiff appeals. Leaving all the allegations of the plaintiff’s complaint uncontroverted, the defendant sets up in his amended answer: “that the plaintiff notified the defendant that his peaches for the year 1923 had been sold to Smith-Prank Packing Company, a corporation, and that thereafter and on or about the 25th day of July, 1923, the defendant secured from said Smith-Prank Packing Company permission to ship his peaches to and sell said peaches in the eastern market.”

The testimony set forth in the transcript alleged to be insufficient to support the findings in favor of the defendant is as follows:

About a week subsequent to the receipt of this letter the defendant had a conversation with a Mr. Humphrey, representing the Earl Fruit Company and learned that there was a possibility of obtaining a little better price for the fruit by shipping his crop…