Appeal from, a judgment of the Superior Court of the city and county of San Francisco.

The action was brought by the plaintiff, as the assignee of E. B. Smith, in the form of a complaint in assumpsit for goods, wares, and merchandise sold and delivered to defendant at his request, viz.: Nine thousand gallons of wine, at twenty cents a gallon, amounting in the aggregate to the sum of eighteen hundred dollars. The defendant denied all of the allegations of the complaint, and set up the following special contract:—

“ Office of R. Schmidt, California Wine Growers’ Agent, 304 Battery Street.—Main Street, St. Helena, California.

“ San Francisco, March 3, 1886.

“Agreement made between E. B. Smith, of Martinez, and R. Schmidt, of San Francisco, as following:—

“ 1. The said E. B. Smith, having at his cellars of Cordelia about fifty thousand gallons Malvasia and Mission, thirty thousand gallons Zinfandel, and twenty-two thousand gallons Malvasia, agrees to sell his wines through the agency of the said R. Schmidt at the standard price of 20 cents (twenty cents), per gallon, net.

“ 2. The said R. Schmidt agrees to prepare these wines into a marketable condition at the rate of 1 cent (one cent) per gallon, and to outlay freight on these wines to this city, amounting about to 1 cent (one cent) per gallon.

“ It is further agreed between the parties hereto that all the profits arising out of the sale of these wines over and above the standard price of twenty cen(s per gallon, and the additional expenses, about two cents per gallon, shall be divided in equal shares between the parties hereto, and the said B. Schmidt agrees to furnish the necessary advances of money in case Mr. E. B. Smith is in want of any, the latter giving the proper time of notification to procure the money; no commissions to be deducted, as the one half of the profit is considered equivalent for all charges and commissions.

“ E. B. Smith.

“ E. Schmidt.”

The defendant pleaded that he had made advances to E. B. Smith, and incurred liabilities for his use and benefit in caring for said wines, and preparing the same for market, and for freight and storage, amounting in the aggregate to $1,478.57, and had received from the sale of wines at his request the sum of $1,124.16, and no more; and alleged that plaintiff sold all but nine thousand gallons of said wines contracted for, through another agency, without defendant's consent, whereby defendant was damaged in the sum of $1,860, in the loss of profits which would have accrued had defendant not been deprived of the opportunity of selling all the wines contracted for.

The court found that the contract pleaded by the defendant was entered into, and that 7,981 gallons of wine were delivered in March and May, 1885, pursuant to the agreement, which were of the value of twenty cents per gallon, amounting to $1,596.20; that defendant advanced for and on account of said wanes the sum of $678.50 in cash, and no more; that on the seventeenth day of June, 1886, the defendant refused to proceed further under the contract, and notified E. B. Smith of his refusal, and refused upon demand to account for any wine sold by him, or to return the wines, but converted the whole of said 7,981 gallons of wine to his own use and benefit, and that sales were subsequently made by the plaintiff, through another agency, with the knowledge and consent of the defendant. Further facts are stated in the opinion of the court.