Cline

This is one of the actions arising out of the contract and transactions set forth in Campbell v. Smith (No. 3574), ante, p. 689 [ 274 Pac. 758 ], to which reference is hereby made for a more complete statement of facts. The plaintiff in this action is the assignee and agent of the Falls Rubber Company.

The complaint is in three counts, on three trade acceptances executed by defendant in favor of the Falls Rubber Company. The jury found in favor of the plaintiff for the amount of these trade acceptances and judgment was entered accordingly. The defendant has not appealed from the judgment and the facts upon which it is based need not be further considered.

By cross-complaint the defendant set up a cause of action against the plaintiff and the Falls Rubber Company for damages on account of the termination by that company of the contract set forth in the Campbell case and its refusal to furnish tires and tubes as provided therein. By a separate verdict and a separate judgment the defendant was awarded damages on his cross-complaint - in the sum of $25,000. The plaintiff and the company have appealed from the judgment. The trial court gave the following instructions, among others,…