Lehmann

The case presented for consideration is this: One E. B. Smith was the owner of about one hundred thousand gallons of wine, which he desired to sell. The wine was stored in a cellar at Cordelia, and was in an unsalable condition. Smith met the defendant, Schmidt, and, as he testifies, Schmidt said “he thought he could make a proposition to me, and that, if I would name the standard price that I would be willing to receive for the wine, that he thought he could bring it to the city and treat it, and whatever could be got more than the amount that I would be willing to sell it for after treating it would be divided between us.” The parties then entered into a written agreement, as follows:

Under and in pursuance of this agreement, Smith sent to defendant, on the twentieth day of March, 1886, five thousand eight hundred and two gallons of the wine, and, on the eighth day of May following, two thousand one hundred and seventy-nine gallons more; and defendant received the wine,' and paid the freight thereon. On account of the wines so delivered, and under the agreement, defendant advanced and paid to Smith several sums of money, aggregating $678.50. Defendant also delivered to Smith…