Luchetti

This action was commenced to recover a sum of money received by defendant for the use and benefit of plaintiff. The complaint was on such a common count.

Defendant answered, specifically denying allegations of complaint and interposed a cross-complaint in three counts. First he alleges lack of capacity of plaintiff to maintain the suit. This count was subsequently stricken, and as no point is urged on the correctness of the ruling we will give no future notice to this phase of the case. In detailing the cross-complaint we will refer to the parties as plaintiff and defendant, meaning thereby the original plaintiff and defendant, rather than to designate them as cross-parties.

The cross-complaint then alleges that one T. A. Turner was the agent of plaintiff and as such agent represented plaintiff in negotiations with third persons for the sale and marketing of grapes.

That Turner did wilfully, falsely, deceitfully -and fraudulently represent to defendant that plaintiff had made arrangements with eastern buyers for the sale of a large quantity of grapes and that persons marketing grapes through plaintiff would receive for the grapes so marketed not less than $32 per ton over and…