Arsenio

The appellant sues the respondent to recover $2,037 claimed as a balance due upon a sale of 223 tons of hay at an agreed price of $18 per ton. It is averred and admitted that the hay was delivered to respondent. The. respondent in his answer, among other things, admits and avers “that said plaintiff agreed that said hay would be well baled and cured and in good merchantable condition when delivered to defendant. That thereafter . . . the said plaintiff did deliver to the defendant 223 tons of barley and alfalfa hay at El Rico Station, in Kings County, California, but that a great portion of said hay was damaged and not in good merchantable condition, and that thereupon the said plaintiff and defendant agreed that said defendant should sell said hay at the best price that he could obtain for the same, and that the said defendant- would pay to the plaintiff for said hay the amount that he, the defendant, received for said hay, less two dollars per ton, which said plaintiff then and there agreed to pay to the defendant as a commission for handling and selling said hay.” There is no claim that the defendant has failed to live up to the terms of this oral contract.

The answer is…