Hollenbeck

Plaintiff had judgment in the court below against the defendant Lunderville, and from this judgment said defendant appeals.

The action instituted and prosecuted by the plaintiff is based upon a certain contract entered into between the defendants and the Holt Manufacturing Company of the city of Stockton for the purchase of a certain caterpillar tractor, and assigned to the plaintiff, which contract is in words and figures as follows, to wit:

It appears from the testimony that Walter J. Talbot was the district agent for the Holt Manufacturing Company for the Sacramento district and that the plaintiff was the special agent acting with him in the selling of tractors. It appears from the transcript that prior to any negotiations concerning the tractor in question, the plaintiff had rented from the Johnson estate 160 acres of land situated in what is known as the by-pass district; that this land was unbroken and was vthen covered by tules; that at the time the negotiations were first taken up, the defendant Lunderville did not have a sufficient acreage of land to justify the purchase of the tractor in question; and that the plaintiff proposed leasing the 160 acres just referred to.…