Thomas

This is an action brought to recover from the defendant one thousand dollars deposited with him by the plaintiff in conformity with the terms of a written agreement entered into between them.

When plaintiff’s case was concluded defendant moved for a nonsuit, which was granted, and judgment was rendered and entered thereon. The appeal is from such judgment.

The testimony introduced shows that the plaintiff entered into a contract in writing with the Western Motor Car Company, the trade name under which the defendant Anthony did business. The contract was a lengthy instrument, providing substantially that Thomas should purchase from the defendant fifty Saxon motor cars between the date of the agreement, February 20, 1914, and January 1, 1915. The cars were to be sold to him at “San Francisco list prices,” and a brokerage or discount of forty dollars on each car so sold was allowed to him off of said list price. The defendant reserved the right “to change the list and net prices of these cars at any time by giving the plaintiff at least two weeks’ notice of the proposed change.” The latter agreed to open an establishment for the sale of the cars at Fresno, keep a demonstrator for…