Scatena

Appeals by defendants from the judgment and order denying a new trial.

In the complaint it is averred, substantially, that “on or about the fourth day of August, 1894,” plaintiff purchased of the defendants, Lorenzo Scatena and A. P. Giannini, copartners, doing business under the firm name of “L. Scatena & Co.,” and said defendants, under said firm name, sold to plaintiff one hundred and fifty tons of peaches of certain named varieties for the price of twenty dollars per ton, delivered to plaintiff; that defendants refused to deliver the peaches, or any of them, although demanded, etc.; and that plaintiff was damaged by said refusal in the sum of fifteen hundred dollars-The answer was a denial of the substantial averments of the complaint. The court found all the issues, except the amount of damages, in favor of plaintiffs; found the damages to be seven hundred "and fifty dollars, and gave judgment for the last-named sum. Thfe two main propositions made by appellants for a reversal are: 1. That there was not sufficient evidence to show a sale as averred in the complaint; and 2. That there was not sufficient memorandum in writing to take it out of the statute of frauds.

1. There…