Farmer

Plaintiff was nonsuited in this action, the trial court holding that the evidence introduced in support of the cause of action set out in the complaint was insufficient. The appeal is from the judgment which followed.

The action was upon a promissory note given incidental to and as a part of a further agreement made between the parties respecting the sale of a certain lot of prune trees. The note, and agreement signed by both parties to the action, was in the following terms:

The evidence showed that about April 1, 1915, as recited in the contract just quoted, defendant placed his order with the plaintiff for three thousand prune trees of the kind and size specified. Plaintiff had not so many trees in stock, but immediately (about April 1, 1915) proceeded to fill the order by securing from persons in the business the trees required, placing an order for some in the state of Oregon and for some in California. As to whether he had gathered together the requisite number of trees by May 1, 1915, the date of the making of the supplemental agreement, is not clear; but it is made entirely clear by the evidence that the ■trees were secured and placed in two separate yards and tied in…