Marone

This is an appeal by the defendant from an order granting a new trial after verdict in his favor. The new trial was granted upon the grounds of insufficiency of the evidence to justify the verdict; that the verdict is against law, and error in law occurring at the trial and excepted to by plaintiff.

The plaintiff and defendant had entered into a contract by which the plaintiff was to purchase from the defendant ten cars of grapes, in good shipping condition, f. o. b. cars. The plaintiff paid two thousand dollars to defendant, two hundred dollars of which was to be applied upon each car of grapes as it was delivered and the balance of the pur chase price was to be paid by letter of credit or check upon delivery of shipping documents.

Defendant was to ship the grapes from Madera, California, and the contract provided that they were to be shipped “as early and as fast as growing crops enable growers to deliver same.” When the grapes were ripe, the .defendant was unable to obtain refrigerator or any other type of railroad car to carry them. The representative of the plaintiff discussed the situation with him and it was determined to haul the grapes from Madera to Fresno by…